rec_12

Regulation (EU) 2021/168 of the European Parliament and of the Council of 10 February 2021 amending Regulation (EU) 2016/1011 as regards the exemption of certain third-country spot foreign exchange benchmarks and the designation of replacements for certain benchmarks in cessation, and amending Regulation (EU) No 648/2012 (Text with EEA relevance) · European Union

(12) Benchmarks and their contractually agreed fallback rates might over time diverge significantly and unexpectedly, and as a consequence, they might no longer represent the same underlying economic reality or lead to commercially unacceptable results. Such cases could include the significant widening of the spread between the benchmark and the contractually agreed fallback rate over time or situations where the contractually agreed fallback provision changes the basis of the benchmark from a variable rate to a fixed rate. Since this issue might arise in a number of Member States, and since contracting parties from different Member States would frequently also be affected in such cases, it should be addressed in a harmonised way in order to avoid legal uncertainty, excessive litigation and, as a consequence, possible significant negative effects on the internal market or repercussions for the financial stability in individual Member States or the Union. Accordingly, the replacement for a benchmark that is established by the implementing act should under certain preconditions serve as a replacement when relevant national authorities, for example macro-prudential authorities, systemic risk councils or central banks, have established that the originally agreed fallback provision no longer reflects the economic reality that the benchmark in cessation was intended to measure or that such a provision could pose a threat to financial stability. The relevant national authorities should undertake an assessment when they are made aware of the potential unsuitability of a commonly used fallback provision by one or more potentially interested parties. Such assessment should, however, not be performed on a contract-by-contract basis. The relevant national authorities involved should inform the Commission and the European Securities and Markets Authority (ESMA) of that assessment.

← rec_11 · All articles · rec_13 →

Source: EUR-Lex (Cellar) · retrieved 2026-10-18 · Text as adopted (Official Journal); later amendments are not incorporated in this text.