Conditions relating to structured finance arrangements, including securitisations and instruments used for hedging purposes

1. Structured finance arrangements pursuant to Article 76(2)(f) of Directive 2014/59/EU shall include the following:

securitisations in which the underlying exposures have been placed into tranches and transferred by a full title transfer from the balance sheet of the originator, to the institution or entity under resolution (true sale securitisation);

securitisations by means of contractual instruments, where the underlying assets remain on the balance sheet of the institution or entity under resolution (synthetic securitisation).

In true sale securitisations, any role of the originator in the structure, including servicing the loans, providing any form of risk protection or providing liquidity, shall be considered as a liability which forms part of the structured finance arrangements.

In synthetic securitisations, the security interest shall be considered as a right which forms part of the structured finance arrangements only if it is attached to specific and sufficiently identified assets or identifiable in accordance with the terms of the arrangement and the applicable national law.

2. Agreements constituting a securitisation structure covering mutual relationships between originators, issuers, trustees, servicers, cash managers and swap and credit protection counterparties, shall be considered as forming part of structured finance arrangements if those mutual relationships are directly linked to the underlying assets and the payments to be made from the proceeds generated by these assets to the holders of the structured instruments. Those mutual relationships include liabilities and rights related to the underlying assets, liabilities under the instruments issued, and security arrangements, including derivative transactions, required for maintaining the flow of payments under these liabilities.

3. Paragraph 2 shall be without prejudice to the power of the resolution authority to decide, on a case-by-case basis and having regard to the specific structure of the structured finance arrangement pursuant to Article 76(2)(f) of Directive 2014/59/EU, that other agreements between the parties referred to in paragraph 2, such as loan servicing agreements, which are not directly linked to the underlying assets and the payments to be made, form part of such structured finance arrangement.

COMMISSION DELEGATED REGULATION (EU) 2017/867 of 7 February 2017 on classes of arrangements to be protected in a partial property transfer under Article 76 of Directive 2014/59/EU of the European Parliament and of the Council