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On 1 January 2018, Regulation 2016/1011 (the Benchmark Regulation / the BMR) starts applying.
For existing benchmark administrators (i.e. those already active on 30 June 2016) this marks the start of a two-year period during which they can apply for authorisation or registration with their competent authority. For administrators located in Belgium, the competent authority is the FSMA. They may continue to provide existing benchmarks until 1 January 2020 or, where the administrator submits an application for authorisation or registration, unless and until such application is refused. ESMA has clarified that existing benchmark administrators can also start providing new benchmarks during this period.
ESMA has clarified that benchmark administrators need to comply with the requirements of the BMR from the moment of authorisation or registration onwards – not before.
For prospective benchmark administrators, the application date of the BMR implies that they need to apply for authorisation or registration before starting to act as an administrator.
For supervised entities using benchmarks, this means that they can continue to use existing benchmarks until 1 January 2020 or, where the administrator submits an application for authorisation or registration, unless and until such application is refused. Benchmarks included in the ESMA register or provided by EU administrators included therein may be used without restriction.
As of 1 January 2018, benchmark users have to produce and maintain robust written plans to cover the event of material changes to or cessation of a benchmark they use. These plans need to be reflected in contracts with clients.
If you think you may be concerned in any way by the entry into application of the BMR and have any questions in this respect, you can contact the FSMA at: firstname.lastname@example.org