Securitisation 2023

Last Updated December 14, 2022

Austria

Law and Practice

Authors



Fellner Wratzfeld & Partners is one of Austria’s leading business law firms and is based in Vienna. The firm has a team of more than 70 highly qualified legal practitioners and provides legal advice in all major legal areas, including banking and finance, corporate/M&A, real estate, infrastructure and procurement law, reorganisation and restructuring. The firm has also developed an ESG practice covering all financing-related topics, among others. Fellner Wratzfeld & Partners represents Austrian and international private companies as well as clients from the public sector. It regularly advises renowned credit institutions and financial service providers on financing and other projects, including company reorganisations. The firm draws upon substantial experience gained in the financing of complex consortia and continues to be involved in the largest banking and finance cases in Austria.

Austrian insolvency law affects securitisations in different ways depending on whether there is a true sale transaction of receivables or a secured loan transaction.

In a true sale transaction of receivables, the legal and economical ownership of assets, including the credit risk, is legally transferred to the special purpose entity (SPE), while the originator receives the corresponding amount of funds. Therefore, the sale and transfer of receivables enables not only the increase of liquidity, but also the distribution and reallocation of credit risk. Under Austrian civil law, such transaction requires an agreement (title) between the originator (as seller) and the SPE (as buyer) as well as an act of transfer (modus) in order to be valid.

The true sale transaction of receivables is considered to be insolvency-remote, because in the event of the originator’s insolvency, the acquired receivables are not part of the originator’s insolvency estate and are therefore not accessible to the originator's creditors. Instead, the SPE’s right of ownership over the acquired receivables triggers a right of segregation (Aussonderungsrecht), which ensures that the receivables do not fall into the originator's insolvency estate. Notwithstanding this right of segregation, the agreement (title) or the act of transfer (modus) may be avoidable in an insolvency of the originator. In order to prevent claims for avoidance, it is particularly necessary for receivables to be assigned at a fair market value.

A transaction may be categorised as a secured loan transaction if the SPE receives claims for granting a loan to the originator and the SPE considers these receivables as collateral. In such case, the SPE has a right to separate satisfaction in the case of the originator’s insolvency (Absonderungsrecht). The right to separate satisfaction is only legally valid if the debtor has been notified of the assignment of the receivables or a book entry in the obligor’s company ledger for the effectiveness of the security assignment has been made prior to the opening of insolvency proceedings (modus). In the case of a secured credit transaction, similar to a true sale transaction, the creation of the security may be subject to avoidance in a later insolvency of the originator.

Besides the significant consequences in the event of the originator’s insolvency, securitisation is a useful instrument for reaching certain economic objectives and – more precisely – for balance sheet management by reason of its flexibility as a financial product. The use of financial means that were received in the course of the transaction in order to repay liabilities leads to a balance sheet contraction at the level of the SPE. Thus, the balance sheet figures can be actively improved. The interposition of an additional entity also broadens the originator’s access to new investors, as their decision about potential investments is mainly dependent on debt securities ratings.

Segregation and Separation Rights

The fulfilment of segregation rights and separation rights may be subject to a six-month deferment, mandated by the insolvency administrator after the commencement of insolvency proceedings, if the business continuity of the originator might be at risk. During such deferment period, the SPE – which has an ownership interest or is entitled to separate satisfaction – cannot request the fulfilment of its claims. This provision may only be disregarded if the enforcement is vital in order to prevent severe disadvantages for the SPE and the enforcement against other assets of the debtor has not led or is unlikely to lead to full satisfaction of the SPE.

Avoidance

The general prerequisites for avoidance under Austrian insolvency law are that the avoidance results in an increase of the insolvency estate and the challenged legal act or transaction caused the direct or indirect discrimination of creditors. In particular in the case of material insolvency (illiquidity or over-indebtedness), which is a special requirement for certain avoidance claims, there is a risk of avoidance. This risk of avoidance can be mitigated if the claim is assigned and the purchase price is paid at the same time. Finally, claims of avoidance can arise if the transaction is qualified as a disadvantageous legal transaction, especially since the debtor is provided with liquid funds that enable it to continue business at the expense of its other creditors.

Pursuant to the definitions of the EU Securitisation Regulation (2017/2402), which “lays down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation”, an SPE is a company that has been established for the purpose of carrying out one or more securitisations. The activities of an SPE must be limited to what is appropriate for accomplishing this purpose, and the SPE’s structure is intended to isolate its own obligations from those of the originator.

For example, an SPE may be established in Austria as a limited liability company (Gesellschaft mit beschränkter Haftung). The permissible business objectives of an SPE generally consist of the transfer of receivables (true sale transactions) or just the transfer of risks (synthetic securitisations). In both cases, it is common and permitted to conclude necessary securitisation transactions, such as hedging. The binding limitation of the business activities of an SPE to the securitisation and to the purchase of risks and assets is essential for preventing the SPE’s insolvency. This restriction forbids and hinders the SPE from conducting any other business activities that could consequently increase the chance of bankruptcy.

Although not strictly required legally, the SPE should be isolated from the originator to render the SPE’s assets bankruptcy-remote in the event of the originator’s bankruptcy. Otherwise, there is substantial risk that the SPE is consolidated or liquidated with the originator, which could lead to the receivables not flowing directly to the investor of the securitisation. Thus, in case of consolidation of the SPE (eg, the SPE is an affiliate of the originator), the creditors' rights to segregation may be insufficient to legally isolate financial assets from the originator. The SPE should therefore restrict the extent of business transactions in order to mitigate any risks.

The Austrian Banking Act (Bankwesengesetz) permits the establishment of SPEs and explicitly excludes securitisation transactions from potential qualification as banking transactions. Therefore, no banking licence is required to pursue these kinds of transactions. This concerns the issue of debt securities, the taking up of loans, the conclusion of hedging transactions and the conclusion of auxiliary transactions relating to securitisation transactions. However, it must be noted that SPEs are obliged to comply with banking secrecy obligations in the same manner (eg, such as the originator or other credit institutions in general). The fact that no banking licence is required results in the increased attractiveness of purchasing loans that are to be restructured with SPEs.

Under Austrian civil law, a valid transfer of financial assets requires both an agreement (title of transfer) and an actual act of transfer, which effects the legal transfer of the claim to the SPE (mode of transfer); the act of transfer (modus) is usually deemed to be included in the receivables purchase agreement (title) itself. The consent or notification of the debtor is not necessary for the validity of the assignment. If these requirements are not met, the exposures remain on the balance sheet of the originator as transferor (such as in a synthetic securitisation, in which only the economic risk is transferred to the SPE, but the legal ownership remains with the originator).

Compared to a true sale, secured loan transactions require certain formalities in order to be valid. In particular, receivables assigned as security (in the form of an assignment agreement as title of transfer) require a book entry in the balance sheet of the assignor or notification to the third-party debtor about the security assignment (mode of transfer) in order to be effective. This means that the assignment has to be disclosed in a way that enables the third-party debtor to become aware of it. The book entry as a publicity act for a security assignment must be set out in the balance sheet of the assignor in both the individual customer accounts and the open item list.

Future receivables can also be subject to assignment if the debtor and the contractual relationship to such debtor are duly individualised. Although the conclusion of the agreement already affects the assignment of receivables, this will again only have a third-party effect if the publicity act (book entry or debtor notification) has been set.

In an originator’s bankruptcy, there is a risk that the receivables and collateral (or the payments arising from them) transferred to the SPE might be allocated to the originator's bankruptcy estate, which may lead to a risk realisation on the side of the SPE and investors. In order to ensure a bankruptcy-remote transaction, an insolvency-proof true sale transaction under the applicable civil law and proper assignment of the financial asset from the seller to the purchaser/the SPE is essential. In terms of a secured loan transaction, the purchaser should assess whether the notification of the debtor took place or that the book entry was made correctly. In order to mitigate the risk of avoidance, there should be no material insolvency at the time of the transaction (in case of doubt, ideally proven by a positive going-concern prognosis) and the receivables should be acquired at a fair market value.

In addition, the purchaser should make sure that the debtor has not agreed to a no-assignment clause with the originator or that the receivables have not already been assigned to another purchaser (no double assignment). The SPE should also be isolated from the originator (eg, with regard to consolidation requirements) in order to safeguard the bankruptcy-remoteness of its assets in the event of the originator’s bankruptcy.

In the course of a restructuring or risk shifting process, it is common for the responsible law firms to evaluate the respective risk of such process and confirm the validity of the construction of the bankruptcy-remote transaction.

In Austria, the rate of value added tax (VAT) generally amounts to 20% of the consideration and is imposed on the sales of goods and provision of services. According to the Austrian Value Added Tax Act (Umsatzsteuergesetz), however, turnovers from certain transactions are exempt from VAT – eg, transactions in the business of monetary claims and the mediation of these transactions.

Qualifying such transactions as turnover requires that the claim is economically separated from the assets of the originator and transferred to the assets of the SPE, which is only the case if the opportunities and risks associated with the assets no longer affect the assignor (originator) but solely the assignee (SPE). Hence, in the absence of any other agreement, the originator is responsible for the accuracy and recoverability of the assigned claim, and no turnover with respect to Austrian tax exemption is made.

In a sale of receivables, a tax exemption only applies to the sale of the receivables itself; any other services provided by the purchaser (SPE) are subject to turnover tax. However, in its decision C-93/10, the European Court of Justice clarified that sales of receivables from non-performing loans at a price below their nominal value are not considered a taxable service, provided that the difference between the nominal value and the purchase price reflects the actual economical value of the respective claims at the time of their assignment. A full tax exemption is thus dependent on the relationship of the purchase price and the actual economic value of the assigned claims.

Triggering Stamp Duty

Certain types of written contracts might trigger stamp duty under Austrian law. The term “written” is broadly interpreted and even comprises communications including an electronic or digital signature, which gives evidence of a chargeable transaction. According to the Austrian Stamp Duty Act (Gebührengesetz), stamp duties also apply if a contract is established outside of Austria but is brought into Austrian territory, due to the written agreement’s nexus to Austria. The assignment of claims, or other rights being documented, is subject to stamp duty at 0.8% of the consideration amount. However, assignments to SPEs and assignments between financial institutions are exempt from such stamp duty.

In cases in which stamp duty might apply, the following structures to avoid such stamp duty have emerged in ongoing legal practice (but still need to be assessed with respect to the underlying facts on a case-by-case basis):

  • the oral conclusion of a contract;
  • the oral conclusion of a contract between the legal representatives of both parties and confirmed by each legal representative exclusively to the respective client;
  • the signing of an agreement abroad, while assuring that there is no reference to Austria; or
  • the conclusion of a contract by implied acceptance of an offer.

In each of these methods aiming to avoid written documentation of the contract, the risk of triggering a stamp duty obligation at a later stage by “substitution documentation” (Ersatzbeurkundung) remains present – eg, when original documents or certified copies are sent to Austria or if implied indications for an agreement (such as protocols or emails) exist, which are deemed to evidence sufficient substance of the underlying agreement.

Attention should also be paid to capital gains tax (Kapitalertragsteuer) with regard to gains distributed to the SPE’s shareholders, and to corporate income tax under Austrian law.

See 2.1 Taxes and Tax Avoidance.

As outlined in 2.1 Taxes and Tax Avoidance, the sale of receivables is, in general, exempt from Austrian VAT. VAT may be imposed on factoring services through the purchaser (eg, regarding collection services); however, no factoring services are usually provided in a true sale securitisation, if the seller continues to collect the receivables on its own.

See 2.1 Taxes and Tax Avoidance.

Usually, all the above-mentioned tax-related issues in regard to securitisation transactions are covered in legal opinions, such as the potential application of income taxes, withholding taxes and stamp duties, as well as the general tax treatment of the SPE and potential VAT on the transfer of receivables and provided services.

Under Austrian law, there are no specific accounting provisions regarding securitisation. However, if an entity is controlled by another company, the Austrian Commercial Code (Unternehmensgesetzbuch) requires a joint and consolidated financial statement. Such a controlling influence derives, for instance, from a majority of votes. Furthermore, significant influence may also arise from a shareholders' agreement. In this case, the International Financial Reporting Standards (IFRS) must be taken into account as well (eg, based on the “power of disposal and return” approach, it is checked whether the parent company can significantly influence the returns of the SPE).

As mentioned, an SPE should be isolated from the originator or at least a structure should be chosen in which there arises no such controlling influence. If the SPE is under the control of the originator, investors should be aware of the aspect of consolidation obligation with regard to their risk management.

As outlined in 3.1 Legal Issues With Securitisation Accounting Rules, there are no specific mandatory national accounting provisions regarding securitisation transactions. Moreover, accounting analysis is typically undertaken separately from the legal analysis.

EU Regulation No 2019/876 (CRR2)

CRR2 was published on 7 June 2019 in the Official Journal of the EU as an amendment to the former Capital Requirements Regulation 575/2013 (CRR) and introduced an array of essential changes, which had already been part of the Basel III standards. As part of the framework, the frequency and content of required disclosures depend on the classification of each institution as a large, small or non-complex or other institution as defined by the Regulation. In particular, CRR2 introduced less onerous reporting requirements and reduced the administrative burdens for smaller institutions in the form of targeted simplifications.

The disclosure requirements of exposures to securitisation positions are considerable for institutions evaluating risk-weighted exposure amounts. CRR2 requires sufficiently comprehensive information for both trading book and non-trading book activities. Among other matters, institutions must disclose information on behalf of their (synthetic) securitisation and resecuritisation activities, their role in securitisation and resecuritisation transactions, their use of the “simple, transparent and standardised securitisation” as defined in CRR2 and the extent to which they use securitisation transactions for transferring the credit risk of exposures to third parties with, where applicable, a separate description of their synthetic securitisation risk transfer policy. They shall also disclose the carrying amount of securitisation exposures for which they act as originator, sponsor or investor. The information is essential for investors for conducting risk analysis and due diligence on the risk profile of a securitisation position and for interpreting credit quality and performance of the respective underlying exposures.

EU Regulation No 2020/873 and Further Amendments of CRR

Regulation 2020/873 was published on 26 June 2020 in the Official Journal of the EU as the so-called “CRR quick fix”, a further amendment to the former CRR. In order to absorb COVID-19-related losses and maintain the resilience of the banking system, the objective was to make the CRR framework more flexible and thereby ease the burden on institutions and ensure lending in the EU.

Furthermore, the EU Commission adopted a first draft of a new regulation (CRR3) on 27 October 2021, which is the official start for implementing the Basel IV-requirements at EU level. The current draft includes adjustments regarding the Credit Risk Standardised Approach, the Internal Ratings Based Approach, the capital requirements for operational risks and the introduction of an output floor.

EU Regulation (EC) No 1060/2009 on Credit Rating Agencies (CRAs)

Pursuant to this regulation, information on the credit quality, the performance of the underlying exposures of the securitisation transaction, the cash flows and any relevant collateral in terms of the transaction as well as any other necessary information must be jointly published by the issuer, the originator and the sponsor of a structured finance instrument on the website of the European Securities and Markets Authority (ESMA).

EU Regulation No 2017/2402 (STS Regulation)

The STS Regulation entered into force on 1 January 2019 and stipulates disclosure requirements. It applies to all securitisations and to the “simple, transparent and standardised” securitisation types, for which it provides a comprehensive regulatory framework.

Apart from the transparency requirements (Article 7) that are relevant here, the Regulation defines securitisation (Article 2) and establishes requirements for:

  • selling securitisations to retail clients (Article 3);
  • SPEs (Article 4);
  • due diligence (Article 5); and
  • risk retention (Article 6).

For the parties involved in a securitisation, the STS Regulation establishes:

  • a ban on resecuritisation (Article 8);
  • criteria for credit granting (Article 9); and
  • the conditions and procedures for securitisation repositories (Article 10).

Generally, the STS Regulation applies if the following criteria are met:

  • the relevant exposures are acquired by the SPE through a true sale or an assignment or a transfer with the same legal effect (ie, simplicity);
  • the originator, sponsor and SPE have provided historical data on default and loss performance to investors – for example, cash flow model (ie, transparency); and
  • the risk retention requirements are fulfilled by the originator, sponsor and SPE (ie, standardisation).

The STS Regulation stipulates the importance of a well-developed and comprehensive information system so that (potential) investors can easily gain access to all relevant information about the respective transactions and securitisations. Therefore, the originator, the sponsor and the SPE should provide data concerning the underlying exposure, the underlying transaction documentation (eg, the asset sale agreement for true sale securitisation) and the investor reports of credit quality and performance of the underlying exposure, not only to the investors but also to the competent authorities and upon request to potential investors.

At a national level, the Austrian Standardised Securitisation Enforcement Act (STS-Verbriefungsvollzugsgesetz – the STS Act), which entered into force on 1 January 2019, is another specific disclosure law relating to securitisation, as it includes administrative penalties for non-compliance with disclosure obligations under the STS Regulation.

Attention should also be paid to disclosure requirements of the technical standards on disclosure issued by ESMA under the STS Regulation, comprising, for instance, information on significant events affecting the securitisation (eg, material changes in its structural features). Finally, the delegated regulations issued by the European Commission with respect to information and details of a securitisation to be made available by the originator, sponsor or SPE must be considered.

As defined under EU legislation, asset-backed securities (ABS) are only offered to qualified investors, and not to the public or retail investors. Due to that fact, no corresponding key information document is required.

The Prospectus Regulation (EU) 2017/1129, which came fully into force in July 2019, ensures easier access to the capital markets, especially for small and medium-sized enterprises.

ABS placed with institutional investors, as defined in the STS Regulation (eg, credit institutes or insurance enterprises), need to fulfil the transparency requirements of Article 7 of such regulation, according to which the originator, sponsor and SPE of a securitisation transaction have to make at least the following information available:

  • information on the underlying exposures on a quarterly basis, or in the case of asset-backed commercial paper (ABCP) information on the underlying receivables or credit claims on a monthly basis;
  • all underlying documentation that is essential for the understanding of the transaction (eg, the final offering document or the prospectus together with the closing transaction documents);
  • in the case of STS securitisations, the STS notification referred to in Article 27;
  • quarterly investor reports or, in the case of ABCP, monthly investor reports; and
  • any inside information relating to the securitisation, the originator, sponsor or SPE.

STS Regulation

With respect to the importance of protecting investors against credit risks, credit risk retention is a ubiquitous issue at the European level. It was previously regulated mainly by theCRR, but the STS Regulation provides new provisions for credit risk retention. Article 6 of such regulation sets out that an investor may only accept the transfer of the credit risk in terms of securitisation positions if the originator, sponsor or the original lender of the securitised exposures has explicitly confirmed that it will retain, on an ongoing basis, a material net economic interest in the credit risk of not less than 5%.

The net economic interest is to be measured at the origination and shall be determined by the notional value for off-balance sheet items.

In addition, Article 6 states that the material net economic interest should not be split between different types of holders and not be subjected to credit risk mitigation or hedging. The STS Regulation also clarifies which types of retention of a material net economic interest qualify as not less than 5%. For instance, only the following shall qualify as a retention of a material net economic interest of not less than 5%:

  • the retention of not less than 5% of the nominal value of each of the tranches sold or transferred to investors;
  • in the case of revolving securitisations or securitisations of revolving exposures, the retention of the originator’s interest must not be less than 5% of the nominal value of each of the securitised exposures; or
  • the retention of a “first loss exposure” of not less than 5% of every securitised exposure within the securitisation.

Originators must ensure that the performance of the assets to be transferred to the SPE is not significantly lower than the comparable assets on the balance sheet of the originator (so-called prohibition on adverse selection). According to the national STS Act, the breach of such obligation is sanctioned by the Financial Market Authority (FMA).

Due to the COVID-19 pandemic, the STS Regulation was adjusted by Regulation (EU) 2021/557 and Regulation (EU) 2021/558 to ensure flexibility so that the securitisation framework provides an additional tool for the support of economic recovery.

Besides the STS Regulation, there are a number of other provisions with regard to credit risk retentions, such as the Commission Delegated Regulation (EU) 625/2014 of 13 March 2014.

The European Banking Authority (EBA) and the Austrian Banking Act

In 2018 the EBA partially incorporated provisions of the Commission Delegated Regulation in its final draft of regulatory technical standards, which aimed to clarify the risk retention requirements stipulated by the STS Regulation. The draft included rules concerning the measurement of the level of retention, the prohibition of hedging the retained interest and the modalities of retaining risk. It also included new approaches with respect to the disclosure of the retained material data to investors, the prohibition on adverse selection under the STS Regulation and other aspects affecting risk retention for the sake of clarity.

On 30 June 2021, the EBA launched a public consultation on draft Regulatory Technical Standards (RTS), which is based on the RTS Regulation as amended by Regulation (EU) 2021/557 specifying the requirements for originators, sponsors, original lenders and servicers related to risk retention. The draft RTS aims to clarify requirements relating to risk retention, thus reducing the risk of moral hazard and aligning interests, and to provide clarity on risk retention in traditional securitisations of non-performing exposures. The final draft was published by EBA on 12 April 2022.

The Austrian Banking Act states that the FMA may impose a fine of up to EUR150,000 if a credit institution does not meet the credit risk retention requirements. In the event of a breach of any risk retention requirement, the FMA may, in accordance with the STS Act, impose financial sanctions on the originators' or sponsors' representatives and on the persons responsible for an original lender of up to EUR5 million or up to twice the amount of the advantage derived from the infringement, if such amount can be quantified.

Pursuant to Article 7 of the STS Regulation, the originator, sponsor and the SPE must provide holders of a securitisation position, the competent authorities and upon request the potential investors with information such as on the underlying exposures on a quarterly basis (in the case of ABCP programme information on the underlying receivables or credit claims must be provided on a monthly basis), all underlying documentation regarding the transaction (including a detailed description of priority of payments of the securitisation), quarterly (or monthly in the case of an ABCP programme) investor reports and any inside information and significant events relating to the securitisation. Non-compliance with such reporting-provisions may be sanctioned under the STS Act as already outlined in 4.3 Credit Risk Retention.

CRR2 provides for certain disclosure requirements, which apply to originators, sponsors or original lenders to the advantage of the investors. The provisions primarily relate to their commitment to maintain the net economic interest in the securitisation, the relevant data on the credit quality and to the performance of the respective underlying exposures, cash flows and collateral supporting a securitisation exposure. In addition, they are obliged to disclose any other important information in order to carry out comprehensive stress tests on the cash flows.

Furthermore, reporting requirements are also included in the Implementing Technical Standards of EBA (ITS) on supervisory reporting with respect to information on securitisations. Its aim is to implement standardised reporting guidelines (eg, definitions, frequencies and uniform formats) for guaranteeing fair competition and for giving supervisors the opportunity to evaluate risks across the EU. The ITS includes provisions about reporting of own-funds and capital requirements, reporting on large exposures and reporting on liquidity and stable funding as well as reporting rules on securitisation exposures.

The Austrian Banking Act requires banks operating in Austria to report securitisations and related risk information on a quarterly basis to the Austrian National Bank (Österreichische Nationalbank).

CRAs play an essential role in the disclosure of relevant data to investors and are tasked with rating securities. Although their legislative framework mainly consists of a regulation on CRAs (EU Regulation (EC) No 1060/2009) and amending regulations on CRAs (the “CRA Regulation”), there are also delegated acts by the European Commission and technical standards by ESMA, which is the single supervisor of CRAs operating in the European Union.

The CRA Regulation

The CRA Regulation includes multiple provisions emphasising CRAs’ independence, objectivity and adequate quality in order to avoid conflicts of interest when issuing credit ratings; it also includes recommendations for issuers, originators and sponsors to avoid these conflicts of interest. For the purpose of remaining independent, for instance, the regulation recommends that issuers shall appoint at least two different CRAs for credit ratings.

Pursuant to the CRA Regulation, entities using credit ratings are also required to consider their own credit risk assessment and cannot solely or mechanistically rely on credit ratings to avoid over-reliance. For this purpose, entities should not use the credit ratings as the sole parameter for evaluating the creditworthiness of different investments. Furthermore, the Austrian National Regulation of the Austrian Financial Market Authority (Kreditinstitute-Risikomanagementverordnung – KI-RMV) does not allow an approach for credit risk assessment that is based only on external credit assessments.

Operating in the EU

Operating credit ratings in the EU requires registration as a CRA. According to ESMA, CRAs from non-EU countries that intend to offer ratings in the EU must have either a certification or an endorsement. ESMA might impose fines or supervisory measures on entities conducting credit rating activities without registration.

CRAs’ primary obligation is to provide investors with disclosure of the necessary data on default probability and rating outlooks. They are required to reveal data about their rating assumptions and their methodologies, which have to be reviewed regularly with regard to their adequacy. However, CRAs are not allowed to carry out any consultancy or advisory services, and have to comply with several disclosure obligations (apart from the mandatory warning of a probable default of a credit rating).

ESMA is exclusively responsible for the registration and supervision of CRAs in the EU. In case of an infringement by a CRA, fines may be imposed, with the amount of the fine depending on the annual turnover of the CRA concerned in the preceding business year. Together with the member states, ESMA is required to inform the public about imposed penalties (if appropriate and proportionate). It is also possible for a civil liability to arise from certain infringements under the CRA Regulation. If this is the case, an investor or issuer may claim damages due to that infringement by the CRA.

The ESMA Guidelines on Internal Control for CRAs – which were published on 30 September 2020 – have been applicable since 1 July 2021 and communicate what ESMA considers to be the characteristics and components of an effective internal control structure within a CRA.

CRR2 provides capital and more rigorous liquidity requirement rules for banks and other institutions that come within the scope of CRR2. In comparison to the former CRR, additional requirements concerning the leverage ratio were added for all institutions under the CRR (3% of the core capital). Furthermore, CRR2 stipulates that institutions must apply either the standardised approach, which allows more opportunities in terms of diversification, or the internal ratings-based approach to calculate their risk-weighted exposure amounts for the purpose of capital adequacy requirements, and to cover a particular percentage of it with own means (Eigenmittelunterlegung).

Pursuant to the KI-RMV, banks in Austria are obliged to record and manage securitisation risk using appropriate and adequate principles and procedures. Furthermore, the economic substance of the securitisation has to be fully reflected in the risk assessment and the management decisions of the banks.

Banks acting as originators of revolving securitisations with clauses enabling early repayment must have liquidity plans to consider the effects of such early repayments. In addition, banks must prepare stress tests for liquidity positions and risk mitigation factors, which should take into account off-balance sheet items and other contingent liabilities of SPEs. Furthermore, the assumptions on the basis of which financing position decisions are made must be reviewed regularly, and at least annually.

According to the STS Regulation, originators, sponsors and original lenders can comply with their obligation to mitigate the interest rate risk and currency risk arising from the STS securitisation by entering into derivative contracts. However, the SPE shall only enter into derivative contracts for the purpose of hedging interest rate or currency risk. In addition, it must ensure that the pool of underlying exposures does not comprise derivatives as derivatives increase the complexity of both the transaction and the risk and due diligence analysis carried out by the investor.

Those derivatives have to be underwritten and documented according to common standards in international finance. Moreover, any interest payments under an STS securitisation should not reference complex formulas or derivatives, and must be based on market interest rates or generally used sectoral rates reflecting the refinancing costs. According to the STS Act, a fine of up to EUR5 million may be imposed in the event of non-compliance with the provisions regarding derivatives under the STS Regulation.

It has to be considered that in synthetic securitisations banks use derivative contracts to transfer the credit risk. As this implies an additional counterparty credit risk, the STS criteria should not allow synthetic transactions.

Synthetic Securitisation

The EBA published a final report on the STS framework for synthetic securitisation on 6 May 2020. This report, which is limited to balance sheet securitisation, included a list of criteria to be considered when labelling the synthetic securitisation as “STS” and provided the pros and cons of a potential differentiated capital treatment for this type of securitisation.

On the basis of the report, EU Regulation 2021/557 was published on 31 March 2021 amending the STS Regulation, laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation to help the recovery from the COVID-19 crisis. This regulation extended the existing EU framework for STS securitisations to synthetic securitisation.

Furthermore, ESMA submitted its final report on technical standards specifying the content and format of STS notification for on-balance sheet securitisations (synthetic securitisations) to the European Commission on 12 October 2021. The report aims to ensure consistency between STS notification frameworks for traditional and synthetic securitisations.

The due diligence requirement provisions for investors, formerly included in the CRR, are stipulated in Article 5 of the STS Regulation, which sets out the minimum standards of due diligence measures to be conducted by investors. As regards the European legislator, it is essential that institutional investors meet proportionate due diligence requirements, to ensure that they properly assess the risks arising from all types of securitisations, to the benefit of end investors.

Prior to investing in securitisation positions, an investor shall perform a careful and comprehensive due diligence exercise in order to ensure that the risks arising from the securitisation position are adequately valued. The due diligence assessments by investors other than the originator, sponsor or original lender must cover at least the respective risk characteristics of the relevant securitisation position and of the underlying exposures and textural characteristics, as well as the approaches for addressing the question with respect to the compliance of that securitisation with the requirements set out in the STS Regulation. This requires comprehensive and sound knowledge of the securitised exposures, such as information on the exposure type, proportion of overdue loans, prepayment rates, collateral type, repurchase, occupancy and default rates. Subsequently, investors must monitor the information on the exposures underlying the securitisation positions, particularly with respect to material changes, on an ongoing basis.

According to the STS Act, the FMA is responsible for monitoring investors’ compliance with due diligence provisions. Violations of such provisions may lead to supervisory sanctions by the FMA in the form of increased own funds requirements. Institutions must demonstrate the fulfilment of the minimum standards for each of their securitisation positions to the competent national authorities, such as the FMA in Austria, which relates to the comprehensive and thorough understanding of each securitisation position and the implementation of written procedures appropriate to their risk profiles and, where relevant, to their trading book and non-trading book.

There is no special law in Austria specifically relating to securitisation, except for the STS Act, which came into force on 1 January 2019 and sets out those provisions necessary for the effectiveness of the STS Regulation.

In addition, the STS Regulation sets out the due diligence obligations for investors, risk retention requirements for the parties involved in a securitisation and transparency requirements (see 4.1 Specific Disclosure Laws or Regulations).

There are no special laws that apply to the form of SPEs accomplishing securitisations in Austria. For example, the SPE may be established as a limited liability company (Gesellschaft mit beschränkter Haftung).

In general, the main participants involved in a securitisation transaction are the SPE, the originator, the servicer (which carries out the ongoing management and collection of the receivables), the investor and a trustee. The trustee may act as a paying agent between the servicer and the investors, among other activities; in principle, the trustee monitors the orderliness of the transaction and the business activities of the SPE and servicer on behalf of the investors. If problems occur in the transaction (eg, defaults), the trustee will particularly monitor the obligations and performance of all parties relating to the securities issued. In this regard, a trust construction may also be created by the involvement of a security trustee who solely represents the interests of the investors; in this case, all claims resulting from the receivables portfolio (including ancillary rights) are transferred by the SPE to a security trustee to protect the rights of the investors against the SPE’s possible insolvency.

In practice, the bankruptcy-remote transfer of the receivables (purchased by the SPE from the originator) to the security trustee can be agreed upon in a security trust agreement between the SPE and the security trustee. Regarding the bankruptcy remoteness of an SPE, it is necessary for the SPE to be isolated from the originator.

In Austria, there is no specific legislation that applies to activities avoided by SPEs or other securitisation entities. Parties involved in a securitisation transaction are regulated under various different EU regulations and other related acts. This means that the relevant restrictions derive from EU legislation. In order to mitigate risks involved in securitisation transactions, there are certain requirements at the EU level that relate to the due diligence assessment of risks by investors and disclosure obligations by the originator, sponsor and original lender. As credit risks may arise in a securitisation transaction, credit enhancement measures can be taken by the involved participants.

The credit risks within a securitisation transaction may be mitigated by various credit enhancement mechanisms before the credit risks are distributed to the investors, either internally within the pool of receivables or externally provided by third parties.

The most common forms and techniques of internal credit enhancement are the following:

  • tranching/subordination of securities – the risk of the collateral is distributed among different tranches that match different investor risk profiles (senior securities will be repaid first and therefore have a priority position compared to junior securities);
  • over-collateralisation – the portfolio transferred to the SPE is of greater nominal value than that of the bonds issued to the investors; or
  • excess spread – this technique can be used to cover credit risks if necessary (eg, if the interest payments to the investors are lower than the sum of the individual interest payments of the debtors).

The most common forms and techniques of external credit enhancement are:

  • guarantees from third parties (eg, guarantor guarantees to compensate for losses arising from credit risks up to a certain amount);
  • letters of credit; or
  • surety bonds (a type of insurance policy that reimburses the issuer for any losses).

There are no special rules regulating the sale or collection of receivables by governmental entities in Austria. With regards to non-assignment clauses, however, public sector entities are treated differently than private sector firms. It should be noted that, under Austrian law, non-assignment clauses made between private sector firms are not enforceable, but indemnities can incur. On the contrary, non-assignment clauses made between a legal person under public law (or an institution established by it) and an applicant for subsidies are enforceable; this also applies if an institution acts in the name of and for the account of a legal person governed by public law.

Typical entities investing in securitisation are financial institutions as well as banks, insurance companies and pension funds. As one of the main participants involved in the securitisation transaction, the investor purchases bonds or assumes only the credit risks that are transferred by means of the various tranches in a securitisation transaction.

While standardised contracts of the International Swaps and Derivatives Association can be used for synthetic sales of receivables, a true-sale structure must be documented on an individual basis.

As outlined in 1.1 Insolvency Laws and 1.3 Transfer of Financial Assets, a true sale requires a receivables purchase agreement (title of transfer) between the originator and the SPE, and a legally sufficient act of transfer that effects the transfer of the claim (mode of transfer). The consent or notification of the debtor is not necessary for the effectiveness of the assignment.

The SPE’s right of ownership to the purchased assets creates a right of segregation (Aussonderungsrecht) and ensures that the receivables will not form part of the originator’s insolvency estate. In order to qualify for segregation, it must be ensured that the receivables of the originator are legally purchased by the SPE. This is the case in a true sale transaction as the ownership of the receivables, including the credit risk, passes to the SPE. The isolation of the originator's financial assets from those of the SPE also requires that the SPE is separated from the originator as a legal person.

In securitisation transactions, representations and warranties relate especially to the accuracy and enforceability of the claim. The assignor is typically liable for the accuracy (Richtigkeit) and enforceability (Einbringlichkeit) of the claim. The accuracy of the claim means that there are no defects of title (Rechtsmängel). The claim must exist and be free from objections. Warranty claims (Gewährleistungsansprüche) regarding defects of title expire by law within two years of learning of the defect of title. In the case of a warranty, supplementary performance (Nacherfüllung), such as by eliminating objections, by law takes precedence over a claim to price reduction and conversion (if the claim is not enforceable).

Moreover, in order to limit the risk to be associated with the originator's insolvency, a netting agreement is typically concluded in a framework agreement stating that, in the case of the originator’s insolvency, all mutual claims between the SPE and the originator are converted into a net claim. As outlined in 4.10 SPEs or Other Entities, a security trustee construction can be created by a security trustee agreement to protect the investors against the SPE’s possible insolvency.

See 5.1 Bankruptcy-Remote Transfers.

See 5.1 Bankruptcy-Remote Transfers.

See 5.1 Bankruptcy-Remote Transfers.

In the case of a default, interest payments may be triggered, as regulated by law or agreed in the transfer documentation among the parties.

In addition to warranty claims, indemnity claims could arise in the case of a default.

The role of the issuer in a securitisation transaction is performed by the SPE, which is established for the specific purpose of concluding securitisation transactions and the activities of which are limited to those appropriate to accomplishing that objective, under a structure that is intended to isolate the obligations of the SPE from those of the originator. As a first step, the SPE purchasesa defined pool of receivables and pays the corresponding amount of financial funds to the originator, then structures the risks and issues the assets to investors.

In a true sale securitisation, as the traditional form of a securitisation transaction, the ownership of the claim is first transferred from the originator to the SPE and the assigned risks to the SPE then can be passed on to the investors by issuing bonds that are collateralised by the receivables (ABS).

The term “sponsor” is defined in the STS Regulation and means a credit institution, whether located in the EU or not (as defined in the CRR), or an investment firm as defined in Directive 2014/65/EU, other than an originator, that establishes and manages an ABCP programme or other securitisation that purchases exposures from third-party entities, or establishes an ABCP programme or other securitisation that purchases exposures from third-party entities and delegates the day-to-day active portfolio management involved in that securitisation to an entity authorised to perform such activity in line with EU law.

This means that the sponsor in a securitisation transaction is responsible for setting up the SPE, but cannot be the originator under the STS Regulation. Furthermore, the sponsor sets up the securitisation programme under which third-party exposures are purchased and may decide (as well as the originator) to hedge against unfavourable interest rate and currency exchange movements.

The typical underwriters or placement agents are financial institutions and investment banks, which contribute through structuring the transaction by analysing investor demand. In addition, they provide guidance on structuring in an efficient and cost-effective manner and essentially assist the SPE by offering securities to investors who may be interested in purchasing the SPE’s securities for the tranches of the assets that are sold to investors. This means that underwriters serve as intermediaries between the acting parties.

The servicer is responsible for the management of the purchased receivables or the underlying credit exposures. The task of a servicer in securitisation transactions is to collect interest and principal payments on the underlying loans. The servicer is appointed by the SPE. Usually, the originator acts as servicer and monitors the rating and performance of the other participants.

The investor is a natural or legal person holding a securitisation position (Article 2 of the STS Regulation). The investors of a securitisation are often the so-called institutional investors, insurance companies, pension funds or banks, and assume or hold the risks of a securitisation. Investors acquire bonds and pay, in return, the corresponding purchase price as outlined in 4.8 Investor Protection. Investors are subject to due diligence requirements to evaluate the risks arising from securitisation transactions.

The trustee controls the disbursement of cash flows with regard to the investors, monitors the proper conduct of the transaction, oversees the business activities of the SPE and servicer on behalf of the investors, and safeguards the investor’s rights in general. Acting as a paying agent between the servicer and investors can be an additional assignment of a trustee.

Apart from the transfer of receivables in the form of a true sale transaction, another option to transfer risk can be achieved through a synthetic securitisation. The STS Regulation defines “synthetic securitisation” as a securitisation where the transfer of risk is achieved by the use of credit derivatives or guarantees, and the exposures securitised remain exposures of the originator.

In a true sale securitisation, ownership is transferred from the originator to the SPE but, in a synthetic securitisation, the credit or default risk associated with the underlying assets is transferred to the SPE and, subsequently, to investors. This means that, without changing the ownership structure, a synthetic transaction allows the originator to transfer economic risk while the exposures remain on its balance sheet. The risk is transferred by means of guarantees or derivative contracts, which serve as hedging instruments.

At an EU level, there are various provisions covering the application and handling of synthetic securitisation transactions. Provisions on synthetic securitisation relating to capital adequacy and risk management requirements are included under CRR2.

EU Regulation No 2021/557

The STS Regulation called on the EBA to publish a report on the feasibility of a specific framework for simple, transparent and standardised synthetic securitisation. As outlined in 4.7 Use of Derivatives, EU Regulation 2021/557 on the basis of the EBA report of 6 May 2020 was published on 31 March 2021, amending the STS Regulation and laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation to help the recovery from the COVID-19 crisis. This regulation extended the existing EU framework for STS securitisations to synthetic securitisation.

Furthermore, ESMA submitted its final report on technical standards specifying the content and format of STS notification for on-balance sheet securitisations (synthetic securitisations) to the European Commission on 12 October 2021. The report aims to ensure consistency between STS notification frameworks for traditional and synthetic securitisations.

Derivatives that entail the transfer of credit risk mostly fall within the categories of credit default swaps (CDS) and credit-linked notes (CLN). Under CDS (unfunded), the SPE is responsible for the losses and agrees to refund potential losses if a specified credit event occurs (eg, borrower default). In return, the originator generates a premium payment to the SPE. Via the issuance of funded or unfunded securities, the SPE transfers the credit risk to the investors. If funded CLN are issued, they are repaid in part within a defined period in advance (even if a credit event does not occur). Upon the occurrence of a credit event on the relevant exposure, the SPE uses the returns from such investments to repay its debts towards the originator.

Austrian securitisations include a wide range of different assets, with receivables from bank loans, SME loans and trade receivables being the most common. Synthetic sales and true sales of receivables are more common in Austria than in the German market, where covered bonds have a strong standing.

The European Central Bank implemented loan level data reporting requirements for ABS as part of the Eurosystem’s collateral framework. The loan level templates are, inter alia, available for SME loans.

Fellner Wratzfeld & Partners

Schottenring 12
1010 Vienna
Austria

+43 1 537 70 0

+43 1 537 70 70

marketing@fwp.at www.fwp.at
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Law and Practice

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Fellner Wratzfeld & Partners is one of Austria’s leading business law firms and is based in Vienna. The firm has a team of more than 70 highly qualified legal practitioners and provides legal advice in all major legal areas, including banking and finance, corporate/M&A, real estate, infrastructure and procurement law, reorganisation and restructuring. The firm has also developed an ESG practice covering all financing-related topics, among others. Fellner Wratzfeld & Partners represents Austrian and international private companies as well as clients from the public sector. It regularly advises renowned credit institutions and financial service providers on financing and other projects, including company reorganisations. The firm draws upon substantial experience gained in the financing of complex consortia and continues to be involved in the largest banking and finance cases in Austria.

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