Benchmark ESMA Q&A: Update May 2018

In the latest update of its Q&A on the Benchmark Regulation, ESMA clarifies its position as regards the need to include a reference in the prospectuses issued under the UCITS Directive (2009/65/EC) ("UCITS Prospectuses") and the prospectuses issued under the Prospectus Directive (2003/71/EC) ("Other Prospectuses") to the registration of administrators and benchmarks in the ESMA register of EU benchmark administrators and third country benchmarks ("ESMA Register").

1. 1. For Prospectus approved on or after 1 January 2018

A reference to the fact that the administrator is listed in the ESMA Register should be added or, if the relevant administrator is not registered in the ESMA Register by the time a prospectus is published, the prospectus should include a statement to that effect.

In the latter case, once the relevant administrator is included in the ESMA Register:

• UCITS Prospectuses should be updated at the first opportunity.
• Other Prospectuses are not, under the Benchmark Regulation, required to be systematically updated once the relevant administrator is included in the ESMA Register. However, this is without prejudice to the obligation provided in the Prospectus Directive for the issuer, the offeror, or the person asking for admission to trading on a regulated market, to make an assessment, on a case-by-case basis, of the significance and/or materiality of the specific situation.

1. 2. For Prospectus approved prior to 1 January 2018

• UCITS Prospectuses should be updated at the first opportunity or at least within 12 months after 1 January 2018. If the administrator is not included in the ESMA Register by 1 January 2019, the prospectus should include a statement to that effect.
• As regards the Other Prospectuses, the position is the same as the one above described in section 1, i.e. they are not required to be systematically updated; however, an assessment on the materiality may have to be made on a case-by-case basis.