EU regulatory basis
In 2018, two EU Regulations setting out a new framework for European securitisation entered into force.
- Regulation (EU) 2017/2402 (the Securitisation Regulation) which introduced a new framework for simple, transparent and standardised (STS) securitisations.
- Regulation (EU) 2017/2401 (the Securitisation Prudential Regulation, or SPR) replaces certain provisions of the Capital Requirements Regulation (CRR) and sets out the framework under which certain institutional investors can benefit potentially from more favourable regulatory capital treatment for STS securitisation exposures.
UK regulatory basis
- The EU Securitisation Regulation has been amended by the Securitisation (Amendment) (EU Exit) Regulations 2019 and as so amended is entitled the 'UK Securitisation Regulation' below.
Capital Markets Union – High-Level Forum recommendations
The ACC welcomes the initiative of the CMU HLF to make the securitisation framework more efficient and better aligned with established industry practices, as part of the 17 interconnected recommendations issued in the final report. The ACC supports the seven key recommendations proposed by the HLF, in particular the recommendation regarding reducing the cost of SME financing and differentiating between disclosure and due diligence requirements for public and private securitisations.
CLOs and STS certification
Collateral Loan Obligations (CLOs) fall within the remit of the Securitisation Regulation, but they are not eligible for STS certification as they are deemed to be ‘actively managed’ for the purposes of the Regulation.
The exclusion of CLOs from the STS framework acts as a brake on the provision of finance to European borrowers, while also limiting the ability of banks to de-leverage their balance sheets. The ACC and AIMA would urge policymakers to amend the STS criteria to encompass transactions where active management can only occur within the portfolio criteria established by the CLO manager and their investors. This would align with the Securitisation Regulation’s existing requirements for new exposures into revolving pools to meet the initial eligibility criteria and for proven servicer experience level.
ESAs Joint Opinion on the jurisdiction scope of the Securitisation Regulation
The ESAs Joint Opinion has been issued to identify areas of uncertainty which exist regarding scope/interpretation of the Securitisation Regulation The Opinion calls for the European Commission to either issue interpretative guidance or amend the Regulation.
The ACC and AIMA is submitting a position on the ESAs opinion to the ESAs and other stakeholders in due course.
European Commission consultation on the EU Securitisation Framework.
The European Commission published a consultation on the EU Securitisation Framework, covering the following key areas:
- The general impact of the regulation;
- Private securitisations;
- Due diligence and jurisdictional scope;
- The need for an simple, transparent and standardised (STS) equivalence regime;
- ESG disclosure;
- The potential role of limited licensed banks performing the functions of securitisation special purpose entities (SSPEs); and
The ACC and AIMA have responded to this consultation. Members can review our response here.
Call for evidence on the UK Securitisation Regulation
The UK Treasury has published a call for evidence on the Securitisation Regulation seeking views on the Regulation and how the UK market compares to other countries.
The ACC and AIMA have submitted a response to this call for evidence providing comments on the following key areas:
- Scope of the regulation;
- Simple, Transparent and Standardised (STS) cetification for Collateralised Loan Obligations;
- ESG and securitsations;
- Disclosure of private securitisations; and
- Risk retention modalities.
Members can review our response here.
Following the consultation, the UK Treasury has published its review of the Securitisation Regulation. The report provides the UK Government position on the functioning of the Securitisation market and the role of the Securitisation Regulation. Key takeaways on the points covered in our response include:
- Functioning of Securitisation market: Securitisation Regulation remains an important element to the functioning regulation of securitisation in the UK and HM Treasury does not see the need to introduce macroprudential measures or other additional regulatory enhancements for both the primary credit lending market and the securitisation market at present
- Institutional investor definition: HMT will be amending the definition of institutional investor to take certain unauthorised, non-UK AIFMs out of scope of the due diligence requirements but does not think it’s appropriate to exclude sub-threshold AIFMs. It is not specified when this will take place other than stating that this will be taken forward at the appropriate time
- Disclosures for private securitisations: Little benefit to extending the public disclosure requirements (i.e. reporting to an SR and filling in two additional templates) to private securitisations
- Distinguishing between public and private securitisations solely on the basis of whether a prospectus is required under section 85 FSMA may not always be appropriate.
- HM Treasury intends to work with the regulators to consider where changes to the current framework may be appropriate
- Any changes to the definition of public and private securitisation, and to disclosure requirements, would be developed with industry input via consultation.
- Environmental Disclosure Requirements:
- Environmental information important for securitisation investors but acknowledge difficulties with the availability and standardisation of such data
- HM Treasury and the regulators will consider whether it is appropriate to extend the Sec Reg’s environmental information disclosure requirements, as raised in Article 46(2)(f) but any additional information required by the Sec Reg’s disclosure templates likely to be subject to availability, as is the case for the Regulation’s current requirements.
- Any changes will also take account of developments in the regulation of green finance disclosure that will soon be implemented (e.g. the Sustainability Disclosure Requirements (SDR)) and balance between providing information and not overburdening securitisation manufacturers
- Not appropriate for green securitisations to be given beneficial capital treatment at present
- Risk retention:
- Framework broadly works as intended and no plans to restrict or adapt the existing modalities at this time
- HM Treasury, and the PRA through their Technical 23 Standards process, will review specific areas, including:
- Transferring the risk retention manager;
- Allowing eligible servicers to fulfil risk retention requirements in NPE securitisations; and
- Calculation of the risk retention on the transaction price for NPE securitisations.
- The PRA intends to prioritise work on the risk retention Technical Standards in 2022.
- HM Treasury can see potential benefits to L-shaped risk retention and including the excess spread as an element of risk retention. However, further work with the regulators is required on this
- STS equivalence:
- An STS equivalence regime is desirable and should be introduced at the appropriate time
- Any new equivalence regime will be consistent with the principles and processes set out in the November 2020 Guidance Document for the UK’s Equivalence Framework for Financial Services
- HM Treasury not minded to remove requirement for originators and sponsors involved in an STS securitisation to be established in the UK under Article 18(2).
- HM Treasury agrees with respondents that the current system of SSPEs works well and does not see a reason to replace it with a system of LLBs
- Jurisdictional scope
- Article 5(1)(f) could helpfully be clarified further and to support the ability for UK investors to invest in overseas securitisations that meet certain conditions
- HM Treasury and the regulators will, as a priority, seek to clarify what kind of disclosures are required for securitisations where the manufacturers are established outside the UK.
- This will balance pragmatism with high disclosure standards like those in the UK
EBA public consultation on draft RTS specifying requirements for originators, sponsors, original lenders and servicers relating to risk retention
The European Banking Authority (EBA) launched a public consultation on draft Regulatory Technical Standards (RTS) specifying the requirements for originators, sponsors, original lenders and servicers related to risk retention, in line with the Securitisation Regulation.
The RTS carry over a substantial amount of provisions from the EBA RTS on risk retention submitted to the European Commission in July 2018 but addresses a number of new provisions, such as:
- Specifying modalities of risk retention in traditional NPE securitisations;
- Specifying requirements for the expertise of servicers acting as a retainers in NPE securitisations;
- Impact of fees payable to the retainer on risk retention;
- Risk retention in re-securitisations or in securitisations of own issued debt instruments; and
- Clarification on the treatment of synthetic excess spread.
The ACC and AIMA have submitted a response to this consultation. Members can review our response here.
The European Commission is due to review the EU Securitisation Regulation in the course of 2022.
HM Treasury is due to review the UK Securitisation Regulation and publish a report to Parliament by 1 January 2022.
(Last updated: 13 September 2021)