The Commission published its MAD II legislative proposals in October 2011. MAD II will replace the existing Market Abuse Directive (2003/6/EC) (MAD) with a new Directive and Regulation: CSMAD and MAR. For more information, see Legal updates, European Commission publishes legislative proposals for Regulation on market abuse and Directive on criminal sanctions for market abuse and Market abuse: Commission proposal for new regulation and directive (corporate aspects).

Following revelations concerning the possible manipulation of the EURIBOR and LIBOR benchmarks, the Commission has assessed whether the manipulation benchmarks, including EURIBOR and LIBOR, would be captured by the MAD II proposals and concluded that the direct manipulation of benchmarks would not fall within the scope of CSMAD or MAR.

The amendments proposed by the Commission to CSMAD and MAR are intended to bring the direct manipulation of benchmarks within the scope of MAD II and to ensure that the direct manipulation of benchmarks becomes a criminal offence. For details of the amendments, see Amendments to MAR and Amendments to CSMAD below.

For these purposes a benchmark is defined as "any commercial index or published figure calculated by the application of a formula to the value of one or more underlying assets or prices, including estimated prices, interest rates or other values, or surveys by reference to which the amount payable under a financial instrument is determined". This definition is an expanded version of the definition used in the proposed Markets in Financial Instruments Regulation (MiFIR).

The FAQs state that underlying assets or prices referenced in benchmarks can include equities (such as the FTSE 100 index), bonds (such as NASDAQ OMX fixed income), interest rates (such as LIBOR or EURIBOR), or commodities such as agricultural products metals or oil and that all benchmarks are included in the amended proposal, provided that these determine the amount payable under a financial instrument.

The Commission intends for the European Parliament and the Council of the EU to consider these proposals as part of their work on MAD II, with a view to adopting a report and general approach respectively on MAD II in autumn 2012.