REGULATION (EC) No 24/2009 OF THE EUROPEAN CENTRAL BANK
of 19 December 2008
concerning statistics on the assets and liabilities of financial vehicle corporations engaged in securitisation transactions
(ECB/2008/30)
THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,
Having regard to the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘ESCB Statute’), and in particular Article 5 thereof,
Having regard to Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the European Central Bank (1), and in particular Articles 5(1) and 6(4) thereof,
Whereas:
(1)
Regulation (EC) No 2533/98 provides in Article 2(1) that, for the fulfilment of its statistical reporting requirements, the European Central Bank (ECB), assisted by the national central banks (NCBs), has the right to collect statistical information within the limits of the reference reporting population and of what is necessary to carry out the tasks of the European System of Central Banks (ESCB). It follows from Article 2(2)(a) of Regulation (EC) No 2533/98 that financial vehicle corporations engaged in securitisation transactions (FVCs) form part of the reference reporting population for the purposes of fulfilling the ECB's statistical reporting requirements, inter alia, in the field of monetary and financial statistics. Furthermore, Article 3 of Regulation (EC) No 2533/98 requires the ECB to specify the actual reporting population within the limits of the reference reporting population and entitles it to fully or partly exempt specific classes of reporting agents from its statistical reporting requirements.
(2)
The purpose of FVC data is to provide the ECB with adequate statistics on the financial activities of the FVC sub-sector in the participating Member States, which are viewed as one economic territory.
(3)
Given the close links between the securitisation activities of FVCs and monetary financial institutions (MFIs), consistent, complementary and integrated reporting of MFIs and FVCs is required. Therefore, the statistical information provided in accordance with this Regulation needs to be considered together with the data requirements for MFIs on securitised loans, as laid down in Regulation (EC) No 25/2009 of 19 December 2008 concerning the balance sheet of the monetary financial institutions sector (recast) (ECB/2008/32) (2).
(4)
The integrated reporting approach of FVCs and MFIs and the derogations provided for in this Regulation aim at minimising the reporting burden for reporting agents and avoiding overlaps in the reporting of statistical information by FVCs and MFIs.
(5)
NCBs should be entitled to exempt FVCs from reporting obligations that would cause unreasonably high costs compared to their statistical benefit.
(6)
Although regulations adopted under Article 34.1 of the ESCB Statute do not confer any rights or impose any obligations on non-participating Member States, Article 5 of the ESCB Statute applies to all Member States, irrespective of whether they have adopted the euro. Recital 17 to Regulation (EC) No 2533/98 makes clear that Article 5 of the ESCB Statute, together with Article 10 of the Treaty establishing the European Community, implies an obligation to design and implement at national level all the measures that the non-participating Member States consider appropriate to collect the statistical information needed to fulfil the ECB's statistical reporting requirements and make timely preparations in the field of statistics to become participating Member States.
(7)
The ECB's sanctions regime laid down in Article 7 of Regulation (EC) No 2533/98 will apply to FVCs,
HAS ADOPTED THIS REGULATION:
Article 1
Definitions
For the purposes of this Regulation:
1.
‘FVC’ means an undertaking which is constituted pursuant to national or Community law under one of the following:
(i)
contract law as a common fund managed by management companies;
(ii)
trust law;
(iii)
company law as a public or private limited company;
(iv)
any other similar mechanism;
and whose principal activity meets both of the following criteria:
(a)
it intends to carry out, or carries out, one or more securitisation transactions and is insulated from the risk of bankruptcy or any other default of the originator;
(b)
it issues, or intends to issue, securities, securitisation fund units, other debt instruments and/or financial derivatives and/or legally or economically owns, or may own, assets underlying the issue of securities, securitisation fund units, other debt instruments and/or financial derivatives that are offered for sale to the public or sold on the basis of private placements.
Neither of the following is included in the definition of FVC:
-
MFIs within the meaning of Article 1 of Regulation (EC) No 25/2009 (ECB/2008/32),
-
investment funds (IFs) within the meaning of Article 1 of Regulation (EC) 958/2007 of the European Central Bank of 27 July 2007 concerning statistics on the assets and liabilities of investment funds (ECB/2007/8) (3);
2.
‘securitisation’ means a transaction or scheme whereby an asset or pool of assets is transferred to an entity that is separate from the originator and is created for or serves the purpose of the securitisation and/or the credit risk of an asset or pool of assets, or part thereof, is transferred to the investors in the securities, securitisation fund units, other debt instruments and/or financial derivatives issued by an entity that is separate from the originator and is created for or serves the purpose of the securitisation, and:
(a)
in case of transfer of credit risk, the transfer is achieved by:
-
the economic transfer of the assets being securitised to an entity separate from the originator created for or serving the purpose of the securitisation. This is accomplished by the transfer of ownership of the securitised assets from the originator or through sub-participation, or
-
the use of credit derivatives, guarantees or any similar mechanism;
and
(b)
where such securities, securitisation fund units, debt instruments and/or financial derivatives are issued, they do not represent the originator's payment obligations;
3.
‘originator’ means the transferor of the assets, or a pool of assets, and/or the credit risk of the asset or pool of assets to the securitisation structure;
4.
‘participating Member State’ means a Member State that has adopted the euro;
5.
‘non-participating Member State’ means a Member State that has not adopted the euro;
6.
‘reporting agent’ means a reporting agent within the meaning of Article 1 of Regulation (EC) No 2533/98;
7.
‘resident’ means resident within the meaning of Article 1 of Regulation (EC) No 2533/98. For the purposes of this Regulation, and if a legal entity lacks a physical dimension, its residence shall be determined by the economic territory under whose laws the entity is incorporated. If the entity is not incorporated, legal domicile shall be used as a criterion, namely the country whose legal system governs the creation and continued existence of the entity;
8.
‘MFI’ means a monetary financial institution within the meaning of Article 1 of Regulation (EC) No 25/2009 (ECB/2008/32);
9.
‘relevant NCB’ means the NCB of the participating Member State in which the FVC is resident.
10.
‘taking up business’ means any activity, including any preparatory measures, related to the securitisation, other than merely establishing an entity that is not expected to commence the securitisation activity in the next six months. Any activity by the FVC taken after the securitisation activity becomes foreseeable means taking up business.
Article 2
Reporting population
1. FVCs resident in the territory of a participating Member State shall form the reference reporting population. The reference reporting population shall be subject to the obligation laid down in Article 3(2).
2. The reference reporting population excluding those FVCs which have been fully exempted pursuant to Article 5(1)(c) shall form the actual reporting population. The actual reporting population shall be subject to the reporting obligations laid down in Article 4, subject to the derogations laid down in Article 5. The FVCs that are subject to reporting their annual financial statement pursuant to Article 5(3) or that are subject to ad hoc reporting obligations pursuant to Article 5(5) shall also form part of the actual reporting population.
3. If an FVC does not have legal personality under its national law, the persons legally entitled to represent the FVC, or in the absence of formalised representation, persons that under the applicable national laws are liable for acts of the FVC, shall be responsible for reporting the information required under this Regulation.
Article 3
List of FVCs for statistical purposes
1. The ECB's Executive Board shall establish and maintain, for statistical purposes, a list of FVCs that form the reference reporting population. FVCs shall submit to the NCBs the data that the NCBs require in accordance with Guideline ECB/2008/31 of 19 December 2008 amending Guideline ECB/2007/9 on monetary, financial institutions and markets statistics (recast) (4). The NCBs and the ECB shall make this list and its updates available in an appropriate form, including by electronic means, via the Internet or, at the request of the reporting agents concerned, in paper form.
2. An FVC shall inform the relevant NCB of its existence within one week from the date on which the FVC has taken up business irrespective of whether it expects to be subject to regular reporting obligations under this Regulation.
3. If the latest accessible electronic version of the list referred to in paragraph 1 is incorrect, the ECB shall not impose sanctions on any entity which did not properly fulfil its reporting requirements to the extent that the requirement set out in paragraph 2 was met and that the entity relied on the incorrect list in good faith.
Article 4
Quarterly statistical reporting requirements and reporting rules
1. The actual reporting population shall provide to the relevant NCB, data on end-of-quarter outstanding amounts, financial transactions and write-offs/write-downs on the assets and liabilities of FVCs on a quarterly basis, in accordance with Annexes I and II.
2. NCBs may collect the statistical information on securities issued and held by FVCs required under paragraph 1 on a security-by-security basis, to the extent that the data referred to in paragraph 1 can be derived according to minimum statistical standards as specified in Annex III.
3. Without prejudice to the reporting rules laid down in Annex II, all assets and liabilities of FVCs shall be reported under this Regulation in accordance with the reporting rules laid down in the relevant national law transposing Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (5). The accounting rules in the relevant national law transposing the Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (6) shall apply to FVCs that do not fall within the scope of the national law transposing Directive 86/635/EEC. Any other relevant national or international accounting standards or practices shall apply to FVCs not falling under national law transposing either of these directives.
4. Where paragraph 3 requires the reporting of instruments on a mark-to-market basis, NCBs may exempt FVCs from reporting these instruments on a mark-to-market basis where the costs entailed by the FVC would be unreasonably high. In this case the FVCs shall apply the valuation used for the purpose of the investor reports.
5. Where according to national market practices available data refer to any date within a quarter, NCBs may allow the reporting agents to report these quarterly data instead, if the data are comparable and if significant transactions occurring between this date and the end of the quarter are taken into account.
6. Instead of write-offs/write-downs referred to in paragraph 1, an FVC may, in agreement with the relevant NCB, provide other information which allows the NCB to derive the required data on write-offs/write-downs.
Article 5
Derogations
1. NCBs may grant derogations to the reporting requirements set out in Article 4 as follows:
(a)
for loans originated by euro area MFIs and broken down by maturity, sector and residency of debtors, and where the MFIs continue to service the securitised loans within the meaning of Regulation (EC) No 25/2009 (ECB/2008/32), the NCBs may grant FVCs derogations from reporting data on these loans. Regulation (EC) No 25/2009 (ECB/2008/32) provides for the reporting of these data;
(b)
the NCBs may exempt FVCs from all reporting requirements set out in Annex I, apart from the obligation to report, on a quarterly basis, end-of-quarter outstanding amount data on total assets, provided that the FVCs that contribute to the quarterly aggregated assets/liabilities account for at least 95 % of the total of FVCs' assets in terms of outstanding amounts, in each participating Member State. The NCBs shall check the fulfilment of this condition in good time in order to grant or withdraw, if necessary, any derogation with effect from the start of each calendar year;
(c)
to the extent that the data referred to in Article 4 can be derived, according to minimum statistical standards as specified in Annex III, from other statistical, public or supervisory data sources and without prejudice to subparagraphs (a) and (b), the NCBs may, after consulting the ECB, fully or partially exempt reporting agents from the reporting requirements set out in Annex I to this Regulation.
2. The FVCs may choose, with the relevant NCB's prior consent, not to use the derogations referred to in paragraph 1 and to fulfil the full reporting requirements specified in Article 4 instead.
3. FVCs that benefit from a derogation within the meaning of paragraph 1(c) shall report their annual financial statements to the relevant NCB, if this is not available from public sources, within six months following the end of the reference period or at the earliest point in time thereafter, in accordance with the applicable national legal practices in the FVC's Member State of residence. The relevant NCB shall notify those FVCs which are subject to this reporting requirement.
4. The relevant NCB shall withdraw the derogation laid down in paragraph 1(c) if data of statistical standards comparable to those prescribed in this Regulation have not been made available in time to the relevant NCB for three consecutive reporting periods, independent of any fault attributable to the FVC involved. FVCs shall start reporting data, as set out in Article 4, not later than three months from the date on which the relevant NCB has notified the reporting agents that the derogation has been withdrawn.
5. Without prejudice to paragraph 3, in order to meet the requirements set out in this Regulation, NCBs may address ad hoc reporting requirements to FVCs that have been granted derogations within the meaning of paragraph 1(c). FVCs shall report the information requested on an ad hoc basis within 15 working days following a request made by the relevant NCB.
Article 6
Timeliness
NCBs shall submit to the ECB data on aggregated quarterly assets and liabilities covering the positions of FVCs in each participating Member State by close of business on the 28th working day following the end of the quarter to which the data relate. NCBs shall set deadlines for receiving the data from reporting agents.
Article 7
Minimum standards and national reporting arrangements
1. FVCs shall comply with the reporting requirements to which they are subject in accordance with the minimum standards for transmission, accuracy, compliance with concepts and revisions specified in Annex III.
2. The NCBs shall define and implement the reporting arrangements to be followed by the actual reporting population in accordance with national characteristics. The NCBs shall ensure that these reporting arrangements provide the required statistical information and allow accurate checking of compliance with concepts and the minimum standards for transmission, accuracy and revisions specified in Annex III.
Article 8
Verification and compulsory collection
The NCBs shall exercise the right to verify or collect information which reporting agents are required to provide pursuant to this Regulation, without prejudice to the ECB's right to exercise these rights itself. In particular, the NCBs shall exercise this right when an institution included in the actual reporting population does not fulfil the minimum standards for transmission, accuracy, and compliance with the concepts and revisions specified in Annex III.
Article 9
First reporting
1. An FVC that has taken up business prior to and including 24 March 2009 shall inform the relevant NCB of its existence by the end of March 2009, irrespective of whether it expects to be subject to regular reporting under this Regulation.
2. An FVC that has taken up business after 24 March 2009 shall inform the relevant NCB of its existence in accordance with Article 3(2).
3. The first reporting in accordance with the statistical reporting requirements to which the FVC is subject pursuant to Articles 4 and 5 shall begin with quarterly data from December 2009. When reporting data for the first time, only outstanding amounts shall be reported.
4. FVCs that take up business after 31 December 2009 shall, when reporting data for the first time, report data on a quarterly basis as far back as the original securitisation transaction.
5. FVCs that take up business after adoption of the euro by their Member State following 31 December 2009, when reporting data for the first time, shall report data on a quarterly basis as far back as the original securitisation transaction.
Article 10
Final provision
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Done at Frankfurt am Main, 19 December 2008.