L_2009015EN.01000101.xml
| 20.1.2009 | EN | Official Journal of the European Union | L 15/1 |
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. |
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; |
| (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...
