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‘Article 50a
Where UCITS management companies or internally managed UCITS are exposed to a securitisation that no longer meets the requirements provided for in the Regulation (EU) 2017/2402 of the European Parliament and of the Council (*1), they shall, in the best interest of the investors in the relevant UCITS, act and take corrective action, if appropriate.
Article 39 Amendment to Directive 2009/138/EC Directive 2009/138/EC is amended as follows:
(1) in Article 135, paragraphs 2 and 3 are replaced by the following:
‘2.
The Commission shall adopt delegated acts in accordance with Article 301a of this Directive supplementing this Directive by laying down the specifications for the circumstances under which a proportionate additional capital charge may be imposed when the requirements provided for in Articles 5 or 6 of Regulation (EU) 2017/2402 of the European Parliament and of the Council () have been breached, without prejudice to Article 101(3) of this Directive.
3.
In order to ensure consistent harmonisation in relation to paragraph 2 of this Article, EIOPA shall, subject to Article 301b, develop draft regulatory technical standards to specify the methodologies for the calculation of a proportionate additional capital charge referred to therein.
The Commission is empowered to supplement this Directive by adopting the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1094/2010.
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(4) in Article 3(1), point (l) is replaced by the following:
‘(l) “securitisation instrument” means a financial instrument or other assets resulting from a securitisation transaction or scheme referred to in Article 2(1) of Regulation (EU) 2017/2402 (Securitisation Regulation);’
(5) Article 8b is deleted;
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‘Article 17
Where AIFMs are exposed to a securitisation that no longer meets the requirements provided for in Regulation (EU) 2017/2402 of the European Parliament and of the Council (*3), they shall, in the best interest of the investors in the relevant AIFs, act and take corrective action, if appropriate.
Article 42 Amendment to Regulation (EU) No 648/2012 Regulation (EU) No 648/2012 is amended as follows:
(1) in Article 2, the following points are added:
‘(30) “covered bond” means a bond meeting the requirements of Article 129 of Regulation (EU) No 575/2013.
(31) “covered bond entity” means the covered bond issuer or cover pool of a covered bond.’
(2) in Article 4, the following paragraphs are added:
‘5.
Paragraph 1 of this Article shall not apply with respect to OTC derivative contracts that are concluded by covered bond entities in connection with a covered bond, or by a securitisation special purpose entity in connection with a securitisation, within the meaning of Regulation (EU) 2017/2402 of the European Parliament and of the Council () provided that:
(a) in the case of securitisation special purpose entities, the securitisation special purpose entity shall solely issue securitisations that meet the requirements of Article 18, and of Articles 19 to 22 or 23 to 26 of Regulation (EU) 2017/2402 (the Securitisation Regulation);
(b) the OTC derivative contract is used only to hedge interest rate or currency mismatches under the covered bond or securitisation; and
(c) the arrangements under the covered bond or securitisation adequately mitigate counterparty credit risk with respect to the OTC derivative contracts concluded by the covered bond entity or securitisation special purpose entity in connection with the covered bond or securitisation.
6.
In order to ensure consistent application of this Article, and taking into account the need to prevent regulatory arbitrage, the ESAs shall develop draft regulatory technical standards specifying criteria for establishing which arrangements under covered bonds or securitisations adequately mitigate counterparty credit risk, within the meaning of paragraph 5.
The ESAs shall submit those draft regulatory technical standards to the Commission by 18 July 2018.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulations (EU) No 1093/2010, (EU) No 1094/2010 or (EU) No 1095/2010.
(3) in Article 11, paragraph 15 is replaced by the following:
‘15.
In order to ensure consistent application of this Article, the ESAs shall develop common draft regulatory technical standards specifying:
(a) the risk-management procedures, including the levels and type of collateral and segregation arrangements, required for compliance with paragraph 3;
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9. For the purpose of this Article, in the case of securitisations which do not involve the issuance of securities, any references to ‘securitisations the securities of which were issued’ shall be deemed to mean ‘securitisations the initial securitisation positions of which are created’, provided that this Regulation applies to any securitisations that create new securitisation positions on or after 1 January 2019.
Article 43a Transitional provisions for STS on-balance-sheet securitisations
1. In respect of synthetic securitisations for which the credit protection agreement has become effective before 9 April 2021, originators and SSPEs may use the designation ‘STS’ or ‘simple, transparent and standardised’, or a designation that refers directly or indirectly to those terms, only where the requirements set out in Article 18 and the conditions set out in paragraph 3 of this Article are complied with at the time of the notification referred to in Article 27(1).
2. Until the date of application of the regulatory technical standards referred to in Article 27(6), originators shall, for the purposes of the obligation set out in Article 27(1), make the necessary information available to ESMA in writing.
3. Securitisations the initial securitisation positions of which were created before 9 April 2021 shall be considered to be STS provided that:
(a) they met, at the time of the creation of the initial securitisation positions, the requirements set out in Articles 26b(1) to (5), (7) to (9) and (11) and (12), Articles 26c(1) and (3), Article 26e(1), the first subparagraph of Article 26e(2), the third and fourth subparagraph of Article 26e(3), and Articles 26e(6) to (9); and
(b) they meet, as of the time of notification pursuant to Article 27(1), the requirements set out in Articles 26b(6) and (10), Articles 26c(2) and (4) to (10), Articles 26d(1) to (5) and the second to seventh subparagraph of Article 26e(2), the first, second and fifth subparagraph of Article 26e(3) and Articles 26e(4) and (5).
4. For the purposes of point (b) of paragraph 3 of this Article, the following shall apply:
(a) in Article 26d(2), ‘prior to the closing of the transaction’ shall be deemed to read ‘prior to notification under Article 27(1)’;
(b) in Article 26d(3), ‘before the pricing of the securitisation’ shall be deemed to read ‘prior to notification under Article 27(1)’;
(c) in Article 26d(5):
(i) in the second sentence, ‘before pricing’ shall be deemed to read ‘prior to notification under Article 27(1)’;
(ii) in the third sentence, ‘before pricing at least in draft or initial form’ shall be deemed to read ‘prior to notification under Article 27(1)’;
(iii) the requirement set out in the fourth sentence shall not apply;
(iv) references to compliance with Article 7 shall be construed as if Article 7 applied to those securitisations notwithstanding Article 43(1).
Article 44 Reports By 1 January 2021 and every three years thereafter, the Joint Committee of the European Supervisory Authorities shall publish a report on:
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(c) the functioning of the due-diligence requirements provided for in Article 5 and the transparency requirements provided for in Article 7 and the level of transparency of the securitisation market in the Union, including on whether the transparency requirements provided for in Article 7 allow the competent authorities to have a sufficient overview of the market to fulfil their respective mandates;
(d) the requirements provided for in Article 6, including compliance therewith by market participants and the modalities for retaining risk pursuant to Article 6(3);
(e) the geographical location of SSPEs.
Based on the information provided to it every three years under point (e), the Commission shall provide an assessment of the reasons behind the location choice, including, subject to the availability and accessibility of information, to what extent the existence of a favourable tax and regulatory regime plays a critical role.
Article 4545a SyntheticDevelopment securitisationsof a sustainable securitisation framework
1. By 21 JulyNovember 20192021, the EBA, in close cooperation with ESMA and EIOPA, shall publish a report on developing a specific sustainable securitisation framework for the feasibilitypurpose of integrating sustainability-related transparency requirements into this Regulation. That report shall duly assess in particular:
(a) the implementation of proportionate disclosure and due diligence requirements relating to potential positive and adverse impacts of the assets financed by the underlying exposures on sustainability factors;
(b) the content, methodologies and presentation of information in respect of sustainability factors in relation to positive and adverse impacts on environmental, social and governance-related matters;
(c) how to establish a specific sustainable securitisation framework forthat simplemirrors or draws upon financial products covered under Articles 8 and 9 of Regulation (EU) 2019/2088 and takes into account, transparentwhere appropriate, Regulation (EU) 2020/852 of the European Parliament and standardisedof syntheticthe Council ();
(d) possible effects of a sustainable securitisation framework on financial stability, limitedthe toscaling balance-sheetup syntheticof the Union securitisation market and of bank lending capacity.
2. ByIn 2drafting Januarythe 2020report referred to in paragraph 1 of this Article, EBA shall where relevant, mirror or draw upon the Commissiontransparency shallrequirements set out in Articles 3, on4, 7, 8 and 9 of Regulation (EU) 2019/2088 and seek input from the basisEuropean Environment Agency and the Joint Research Centre of the European Commission.
3. In conjunction with the review report under Article 46, the Commission shall, based on the EBA report referred to in paragraph 1 of this Article, submit a report to the European Parliament and to the Council on the creation of a specific frameworksustainable forsecuritisation simple,framework. transparentThe andCommission’s standardisedreport synthetic securitisationshall, limitedwhere to balance-sheet synthetic securitisationappropriate, togetherbe withaccompanied by a legislative proposal, if appropriate.
Article 46 Review By 1 January 2022, the Commission shall present a report to the European Parliament and the Council on the functioning of this Regulation, accompanied, if appropriate, by a legislative proposal.
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(e) whether in the area of STS securitisations an equivalence regime could be introduced for third-country originators, sponsors and SSPEs, taking into consideration international developments in the area of securitisation, in particular initiatives on simple, transparent and comparable securitisations;
(f) the implementation of the requirements providedset forout in ArticleArticles 22(4) and 26d(4) and whether they needmay to be extended to securitisation where the underlying exposures are not residential loans or auto loans or leases, with thea view to mainstreaming environmental, social and governance disclosure;
(g) the appropriateness of the third-party verification regime as provided for in Articles 27 and 28, and whether the authorisation regime for third parties provided for in Article 28 fosters sufficient competition among third parties and whether changes in the supervisory framework need to be introduced in order to ensure financial stability; and
(h) whether there is a need to complement the framework on securitisation set out in this Regulation by establishing a system of limited licensed banks, performing the functions of SSPEs and having the exclusive right to purchase exposures from originators and sell claims backed by the purchased exposures to investors; and
(i) the possibility for further standardisation and disclosure requirements in view of evolving market practices, namely through the use of templates, for both traditional and synthetic securitisations, including for bespoke private securitisations where no prospectus has to be drawn up in compliance with Regulation (EU) 2017/1129 of the European Parliament and of the Council ().
Article 47 Exercise of the delegation
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