REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the delegation of power to adopt delegated acts conferred on the Commission pursuant to Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014
Date: 2024-06-12
Institutions: Directorate-General for Financial Stability, Financial Services and Capital Markets Union, European Commission
Subjects: European Commission, benchmarking, delegated legislation, financial instrument, financial legislation, investment company, performance measurement, powers of the institutions (EU), transfer of competence

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  EN 

   EUROPEAN COMMISSION  Brussels, 12.6.2024  COM(2024) 244 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the delegation of power to adopt delegated acts conferred on the Commission pursuant to Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014  
 
 
1.  Introduction 

Regulation (EU) 2016/1011 of the European Parliament and of the Council1 was adopted on 8 
June 2016. Regulation (EU) 2016/1011 has subsequently been amended by Regulation (EU) 
2019/2089 of the European Parliament and of the Council2, Regulation (EU) 2019/2175 of the 
European  Parliament  and  of  the  Council3,  Regulation  (EU)  2021/168  of  the  European 
Parliament and of the Council4 and Regulation (EU) 2023/2869 of the European Parliament 
and of the Council5. 

Regulation  (EU)  2016/1011  introduced  a  common  framework  to  ensure  the  accuracy  and 
integrity of indices used either as benchmarks in financial instruments and financial contracts 
or to measure the performance of investment funds in the Union. 

According to Article 49(1) of Regulation (EU) 2016/1011, the Commission is empowered to 
adopt delegated acts. 

With regard to Articles 3(2), 13(2a), 19a(2), 19c(1), 20(6), 24(2), 27(2b), 33(7), 51(6) and 54(3) 
of Regulation (EU) 2016/1011, Article 49(2) of Regulation (EU) 2016/1011 provides that the 
power to adopt delegated acts is conferred on the Commission for a five-year period, which 
can be tacitly extended for further period of identical duration unless the European Parliament 
or the Council opposes to it no later than three months before the end of each period. Initially, 
the five-year period ran from 30 June 2016 until 30 June 2021. Regulation (EU) 2019/2089 
amended Article 49(2) so that the empowerment is currently granted from 10 December 2019 
until  10  December  2024,  and  added  the  requirement  to  prepare  a  report  in  respect  of  the 
delegation of power. This report aims to fulfil that requirement. 

1 
Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices 
used as benchmarks in financial instruments and financial contracts or to measure the performance of investment 
funds  and  amending  Directives  2008/48/EC  and  2014/17/EU  and  Regulation  (EU)  No  596/2014,  (OJ  L 171, 
29.6.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/1011/oj–65). 
2 
Regulation  (EU)  2019/2089  of  the  European  Parliament  and  of  the  Council  of  27  November  2019 
amending  Regulation  (EU)  2016/1011  as  regards  EU  Climate  Transition  Benchmarks,  EU  Paris-
aligned Benchmarks and  sustainability-related  disclosures  for  benchmarks  (OJ  L 317,  9.12.2019,  p.  17,  ELI: 
http://data.europa.eu/eli/reg/2019/2089/oj). 
3 
Regulation  (EU)  2019/2175  of  the  European  Parliament  and  of  the  Council  of  18  December  2019 
amending  Regulation  (EU)  No 1093/2010  establishing  a  European  Supervisory  Authority  (European  Banking 
Authority), Regulation (EU) No 1094/2010 establishing a European Supervisory Authority (European Insurance 
and  Occupational  Pensions  Authority),  Regulation  (EU)  No 1095/2010  establishing  a  European  Supervisory 
Authority (European Securities and Markets Authority), Regulation (EU) No 600/2014 on markets in financial 
instruments, Regulation (EU) 2016/1011 on indices used as benchmarks in financial instruments and financial 
contracts  or  to  measure  the  performance  of  investment  funds,  and  Regulation  (EU)  2015/847  on  information 
accompanying transfers of funds, (OJ L 334, 27.12.2019, p. 1, ELI: http://data.europa.eu/eli/reg/2019/2175/oj). 
4 
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 (OJ L 49, 12.2.2021, p. 6, ELI: http://data.europa.eu/eli/reg/2021/168/oj). 
5 
Regulation  (EU)  2023/2869  of  the  European  Parliament  and  of  the  Council  of  13  December  2023 
amending certain Regulations as regards the establishment and functioning of the European single access point 
(OJ L, 2023/2869, 20.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2869/oj). 

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2.  Legal basis 

Article 49(2) of Regulation (EU) 2016/1011 requires the Commission to prepare a report in 
respect of the empowerments referred to in that provision before the end of the five-year period 
for which they are granted.  

3.  Exercise of the delegation 

3.1. Consultation prior to adoption  

In accordance with Article 49(4) of Regulation (EU) 2016/1011, during the preparation of the 
delegated  acts  the  Commission  consulted  the  Expert  Group  of  the  European  Securities 
Committee (EG ESC). All Member States were invited to nominate experts to take part in those 
consultations and the European Parliament was also invited to participate. 

The  Commission  took  the  observations  presented  in  those  consultations  into  consideration 
when  preparing  the  final  versions  of  the  delegated  acts.  The  Commission  also  regularly 
informed the members of the EG ESC of the progress made with the draft delegated acts. 

As soon as delegated acts were adopted by the Commission, they were notified simultaneously 
to the European Parliament and to the Council, triggering the objection period referred to in 
point 3.2. below.  

3.2. Delegated acts adopted 

During  the  reporting  period  that  goes  from  10  December  2019  to  10  December  2024,  the 
Commission exercised its delegated powers by adopting the delegated acts referred to in the 
Table below. Before the creation of the reporting requirement, the Commission had already 
adopted delegated acts under Articles 3(2), 20(6)(a), 20(6)(c) and 51(6) of Regulation (EU) 
2016/10116. 

Delegated Act 

Commission Delegated Regulation (EU) 2020/18167 

Commission Delegated Regulation (EU) 2020/18188 

Commission Delegated Regulation (EU) 2020/18179  

Empowerments 

Art. 13(2a)  

Art. 19a(2) 
Art. 19c(1)  

Art. 27(2b)  

Prior to the current reference period, 4 delegated acts regarding the empowerments under Articles 3(2), 

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20(6)(a), 20(6)(c) and 51(6) of Regulation (EU) 2016/1011 had already been adopted by the Commission.  
7 
Commission  Delegated  Regulation  (EU)  2020/1816  of 17 July  2020  supplementing  Regulation  (EU) 
2016/1011 of the European Parliament and of the Council as regards the explanation in the benchmark statement 
of how environmental, social and governance factors are reflected in each benchmark provided and published (OJ 
L 406, 3.12.2020, p. 1, ELI: http://data.europa.eu/eli/reg_del/2020/1816/oj). 
8 
Commission  Delegated  Regulation  (EU)  2020/1818  of 17 July  2020  supplementing  Regulation  (EU) 
2016/1011  of  the  European  Parliament  and  of  the  Council  as  regards  minimum  standards  for  EU  Climate 
Transition  Benchmarks 
(OJ  L  406,  3.12.2020,  p.  17, 
ELI: http://data.europa.eu/eli/reg_del/2020/1818/oj). 
9 
Commission  Delegated  Regulation  (EU)  2020/1817  of 17 July  2020  supplementing  Regulation  (EU) 
2016/1011 of the European Parliament and of the Council as regards the minimum content of the explanation on 

and  EU  Paris-aligned  Benchmarks 

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3.3. Objection to delegated acts 

According to Article 49(6) and (6a) of Regulation (EU) 2016/1011, the European Parliament 
or the Council may object to a delegated act within a period of three months from the date of 
notification,  extendable  by  another  three  months  at  the  initiative  of  either  the  European 
Parliament  or  the  Council.  If  either  the  European  Parliament  or  the  Council  objects  to  a 
delegated act within that period, it does not enter into force. Neither the European Parliament 
nor the Council objected to any of the delegated acts mentioned in Section 3.2. 

3.4. Need for extending the power to adopt delegated acts  

While a number of delegated acts have been adopted at this point, the empowerments listed in 
the table below have not been used until now.  

Delegated Acts  

Delegated  act  to  review  the  calculation  method  used  to 
determine the thresholds referred to in Article 20(1) in the 
light of market, price and regulatory developments as well 
as the appropriateness of the classification of benchmarks 
with  a  total  value  of  financial  instruments,  financial 
contracts, or investment funds referencing them that is close 
to the thresholds  

Delegated  act  to  review  the  calculation  method  used  to 
determine  the  threshold  referred  to  in  Article  24(1), 
point (a),  in  the  light  of  market,  price  and  regulatory 
developments  as  well  as  the  appropriateness  of  the 
classification of benchmarks with a total value of financial 
instruments,  financial  contracts  or 
investment  funds 
referencing them that is close to that threshold  

Delegated  act  concerning  measures  to  determine  the 
conditions under which the relevant competent authorities 
may  assess  whether  there  is  an  objective  reason  for  the 
provision of a benchmark or family of benchmarks in a third 
country and their endorsement for their use in the Union.  

Delegated act to extend the 42-month period referred to in 
Article 51(2) by 24 months, if the report referred to in point 
(b) of paragraph 1 of Article 54 provides evidence that the 
transitional  registration  regime  under  Article  51(2)  is  not 
detrimental to a common European supervisory culture and 
consistent  supervisory  practices  and  approaches  among 
competent authorities.  

Empowerments  

Article 20(6), point (b)  

Article 24(2)  

Article 33(7)  

Article 54(3)  

The reasons why those delegated acts have not yet been adopted vary. 

how  environmental,  social  and  governance  factors  are  reflected  in  the  benchmark  methodology  (OJ  L  406, 
3.12.2020, p. 12, ELI: http://data.europa.eu/eli/reg_del/2020/1817/oj). 

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The delegated acts to be adopted under the empowerments laid down in Article 18a(3), 
Article 30(2a), Article 30(3a) and Article 33(7) of Regulation (EU) 2016/1011 are related 
to the rules for the use of non-EU benchmarks in the Union. The date of application of 
that regime has been postponed several times, most recently until 31 December 2025, as 
it became apparent that restricting access to non-EU benchmarks would be detrimental 
to supervised entities in  the EU using those benchmarks.10 As the rules for the use of 
third-country benchmarks in the EU are yet to come into mandatory application, it was 
judged too early to adopt the delegated acts under these empowerments.  

as regards the delegated acts to be adopted under the empowerments laid down in Article 
20(6), point (b), and Article 24(2), the Commission has not been made aware in its regular 
contacts  with  the  European  Securities  and  Markets  Authority  and  national  competent 
authorities of any practical  difficulties in  applying the  quantitative thresholds of EUR 
500 billion and EUR 50 billion which delineate between  critical,  significant  and non-
significant  benchmarks.  Therefore,  the  Commission  has  considered  that  there  was  no 
need to review the calculation method to determine the various quantitative thresholds in 
Regulation  (EU)  2016/1011  and  has  not  adopted  delegated  acts  to  that  effect.  The 
Commission will do so should the circumstances change. 

the  delegated  act  to  be  adopted  under  the  empowerment  laid  down  in  Article 54(3) 
concerns the extension of the 42-month period referred to in Article 51(2) by 24 months 
for  the  application  of  Regulation  (EU)  2016/1011  to  benchmark  administrators 
established  in  the  Union  before  2020.  Not  having  acted  on  this  empowerment,  the 
transitional period that it would have permitted to extend has now lapsed, rendering the 
empowerment obsolete. 

Finally,  noting  that  the  Commission  has  proposed  to  amend  Article  24  of  Regulation  (EU) 
2016/101111,  and  that  the  European  Parliament  has  subsequently  proposed  amendments  to 
Article 3312, it is presently uncertain whether to which extent the empowerments contained in 
those articles will be amended in the revised regulation13.  

4.  Conclusion 

Given the explanation provided in Section 3, the Commission considers  that there is a clear 
need for a tacit extension of the delegation of power provided for in Article 49(2) of Regulation 
(EU) 2016/1011 for a further period of five years.  

The Commission invites the European Parliament and the Council to take note of this report. 

10 Regulation (EU) 2019/2089  postponed the entry into application until 31 December 2022; Regulation (EU) 
2021/168 postponed the entry into application until 31 December 2024 and introduced the possibility of a further 
postponement  by  a  delegated  act  of  the  Commission.  On  14  July  2023,  the  Commission  adopted  Delegated 
Regulation (EU) 2023/2222 extending the transitional period laid down for third-country benchmarks in Article 
51(5) of Regulation (EU) 2016/1011. 
11 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/1011 
as regards the scope of the rules for benchmarks, the use in the Union of benchmarks provided by an administrator 
located in a third country, and certain reporting requirements, COM(2023) 660 final. 
12 Report on the proposal for a regulation of the European Parliament and of the Council amending Regulation 
(EU) 2016/1011 as regards the scope of the rules for benchmarks, the use in the Union of benchmarks provided 
by an administrator located in a third country, and certain reporting requirements, A9-0076/2024. 
13 Inter-institutional negotiations are expected to begin in the new parliamentary term after the elections of 6-9 
June 2024. 

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