Article 51
Transitional provisions
1.
An index provider providing a benchmark on 30 June 2016 shall apply for authorisation or registration in accordance with Article 34 by 1 January 2020.
2.
By 1 January 2020, the competent authority of the Member State where an index provider applying for authorisation in accordance with Article 34 is located shall have the power to decide to register that index provider as an administrator even if it is not a supervised entity, under the following conditions:
(a)
the index provider does not provide a critical benchmark;
(b)
the competent authority is aware, on a reasonable basis, that the index or indices provided by the index provider are not widely used, within the meaning of this Regulation, in the Member State where the index provider is located as well as in other Member States.
The competent authority shall notify ESMA of its decision adopted in accordance with the first subparagraph.
The competent authority shall keep evidence of the reasons for its decision adopted in accordance with the first subparagraph, in such a form that it is possible to fully understand the evaluations of the competent authority that the index or indices provided by the index provider are not widely used, including any market data, judgement or other information, as well as information received from the index provider.
3.
An index provider may continue to provide an existing benchmark which may be used by supervised entities until 1 January 2020 or, where the index provider submits an application for authorisation or registration in accordance with paragraph 1, unless and until such authorisation or registration is refused.
4.
Where an existing benchmark does not meet the requirements of this Regulation, but ceasing or changing that benchmark to fulfil the requirements of this Regulation would result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument or the rules of any investment fund, which references that benchmark, the use of the benchmark shall be permitted by the competent authority of the Member State where the index provider is located. No financial instruments, financial contracts, or measurements of the performance of an investment fund shall add a reference to such an existing benchmark after 1 January 2020.
4a.
An index provider may continue to provide an existing benchmark that has been recognised as a critical benchmark by an implementing act adopted by the Commission in accordance with Article 20 until 31 December 2021 or, where the index provider submits an application for authorisation in accordance with paragraph 1, unless and until such authorisation is refused.
4b.
An existing benchmark that has been recognised as a critical benchmark by an implementing act adopted by the Commission in accordance with Article 20 may be used for existing and new financial instruments, financial contracts, or for measuring the performance of an investment fund until 31 December 2021 or, where the index provider submits an application for authorisation in accordance with paragraph 1, unless and until such authorisation is refused.
4c.
Where competent authorities or ESMA intend to designate as significant a benchmark provided by an administrator that was included in the register referred to in Article 36 on 31 December 2025 or where ESMA intends to designate as significant a benchmark that was included in the register referred to in Article 36 on 31 December 2025, the competent authorities or ESMA, as applicable, shall do so by 30 September 2026.
Administrators of benchmarks that on 31 December 2025 were included in the register referred to in Article 36 as authorised, registered or recognised, or as endorsing administrators, shall retain that status until 30 September 2026 and:
(a)
where one or more of their benchmarks are significant pursuant to Article 24(1), point (a), those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 24a(1);
(b)
where one or more of their benchmarks are an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark, or a commodity benchmark subject to Annex II, those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 34;
(c)
where one or more of their benchmarks are designated as significant pursuant to Article 24(3) or (6) on or before 30 September 2026, those administrators shall not be obliged to re-apply for authorisation, registration, recognition or endorsement pursuant to Article 24a(2) or (3), as applicable;
(d)
where none of their benchmarks is significant pursuant to Article 24 as at 30 September 2026, an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark, or a commodity benchmark subject to Annex II, and those administrators request designation of one or more of their benchmarks as significant pursuant to Article 24(7) by 1 January 2027, those administrators shall not be obliged to re-apply for authorisation or registration where that request leads to a designation.
A spot foreign exchange benchmark provided by an administrator located in a third country may be used for existing and new financial instruments and financial contracts, or for measuring the performance of an investment fund until the date of entry into force of the implementing act referred to in Article 18a(3).
5.
Unless the Commission has adopted an equivalence decision as referred to in paragraph (2) or (3) of Article 30, an administrator has been recognised pursuant to Article 32 or a benchmark has been endorsed pursuant to Article 33, the use in the Union by supervised entities of a third-country benchmark shall be permitted only for financial instruments, financial contracts and measurements of the performance of an investment fund that already reference that benchmark or which add a reference to such benchmark before 31 December 2023.
The first subparagraph shall not apply to benchmarks provided by administrators who relocate from the Union to a third country during the transitional period. The competent authority shall notify ESMA in accordance with Article 35. ESMA shall draw up a list of third-country benchmarks to which the first subparagraph does not apply.
Where ESMA has received, by 31 December 2025, an application for recognition pursuant to Article 32(5) from an administrator located in a third country providing an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark or a commodity benchmark subject to Annex II, or an application for endorsement pursuant to Article 33(1) for an EU Paris-aligned Benchmark, an EU Climate Transition Benchmark or a commodity benchmark subject to Annex II provided by an administrator located in a third country, the benchmark concerned may be used for existing and new financial instruments and financial contracts, unless and until its administrator’s recognition or its endorsement is refused by ESMA.
6.
The Commission shall be empowered to adopt delegated acts in accordance with Article 49 concerning measures to determine the conditions on which the relevant competent authority may assess whether the cessation or the changing of an existing benchmark to conform with the requirements of this Regulation could reasonably result in a force majeure event, frustrate or otherwise breach the terms of any financial contract or financial instrument or the rules of any investment fund which references such benchmark.