Part 1: Critical Benchmarks Section 2: Liability of administrator of an Article 23A benchmark
Section 2 inserts Article 23FC into the BMR, which specifies actions or inactions for which the administrator of an Article 23A benchmark is not liable in damages.
	Paragraph 1(a) of Article 23FC provides that neither the administrator of an Article 23A benchmark, nor its officers or employees are liable in damages where it takes action or inaction that is required by the FCA under paragraph 2 or paragraph 8 of Article 23D of the BMR. Specifically, paragraph 2 of Article 23D provides that the FCA can impose requirements on the administrator of an Article 23A benchmark relating to how a critical benchmark is determined, including the use of input data, the rules of the benchmark or its code of conduct. Paragraph 8 of Article 23D clarifies that the benchmark administrator may not change any of these elements of the benchmark unless it is either required or permitted to do so by the FCA.
	Paragraph 1(b) also provides that the administrator of an Article 23A benchmark is not liable in damages where it then publishes the benchmark as amended as a result of the action or inaction required under paragraph 2 or by paragraph 8 of Article 23D. Paragraph (1)(b) applies regardless of whether the administrator has been compelled to publish the benchmark by the FCA under Article 21(3) of the BMR, and therefore includes a case where the administrator exercises discretion in continuing to publish the benchmark.
	Paragraph 2 sets out that to the extent that the administrator exercises a discretion conferred upon it by the FCA under paragraph 2 or paragraph 8(b) of Article 23D, the protections afforded to the administrator in paragraph 1 of Article 23FC will not remove liability. The administrator of an Article 23A benchmark remains liable for action it takes within the scope of its discretionary powers.
	Paragraph 3 also makes clear that paragraph 1(b) does not remove liability where the administrator exercises any other discretion relating to the time or manner of publication of the Article 23A benchmark.