The European Securitisation Regulation regulates comprehensively and uniformly throughout Europe how securitisations are to be treated by the parties involved. However, the Securitisation Regulation in no way stipulates according to which legal provisions securitisation transactions or positions arise for the individual EU member states, according to which legal provisions the sale of receivables is legally carried out, which tax or insolvency law provisions are applied, and much more. Such provisions depend on the relevant national framework. Many European countries have dedicated securitisation laws for this purpose (e.g. in Luxembourg, Italy, Spain and France) or apply a wide variety of existing legal provisions (e.g. Germany). We refer to the sum of all relevant legal provisions in Germany for the implementation of securitisations and their treatment from a legal and tax perspective as the German securitisation framework.
In addition to the necessary improvements at the European level, we believe it is important to also sharpen the national legal regulations that apply to securitisation.
To compensate for the consequences of rising risk weights and costs and thus to support the formation of a Capital Markets Union, we are committed to improving the German securitisation framework through targeted measures to such an extent that securitisation transactions can be implemented with significantly less effort. In addition, securitisation special purpose vehicles should be able to be established in Germany on a regular basis with legal certainty.
- Positive contribution to the stability of the European financial markets within the framework of the Capital Markets Union
- increasing establishment of securitisation special purpose vehicles in Germany
- Facilitation of financing options, especially for small and medium-sized enterprises and leasing companies
- Employment effect and strengthening of Germany as a financial location
- Contribution to financing the digital and green transformation
2. German Securitisation Special Purpose Vehicle
Create a GmbH as a securitisation GmbH, which is subject to the general rules of the German Limited Liability Companies Act (GmbHG), German Insolvency Act (InsO), German Commercial Code (HGB), etc., but can determine in the articles of association that it is a ‘securitisation company’ according to the Securitisation Regulation and is thus subject to a special regime that makes special provisions in specific areas. The latter include, in particular, that the assets of such a securitisation company are held in ‘compartments’ which are separated from each other legally and under insolvency law.
3. True Sale
Explicitly regulate by law that a sale of receivables in accordance with the Securitisation Regulation is always (i) a ‘true sale’ under civil law (sections 433, 398 BGB) as well as (ii) under insolvency law (i.e. that in the case of insolvency of the originator the securitisation special purpose vehicle can always demand segregation under section 47 of the InsO or substitute segregation under section 48 of the InsO, irrespective of the asset class).
4. Start-up financing/licensing agreements
Legally regulate that continuing obligations cannot be terminated and § 103 of the InsO does not apply if the claims are assigned to a securitisation GmbH by way of securitisation. This applies in particular to licence agreements in order to eliminate existing competitive disadvantages for German tech start-ups.
5. Health sector/data protection
Legal regulation that allows data to be passed on to a purchaser of receivables or to a securitisation special purpose entity outside of the German Social Code V under the aspect of patient confidentiality and social secrecy. This makes it possible for health care providers to finance themselves through securitisation.
In addition, we have proposed a number of other related adjustments, inter alia, on VAT, DAC6, assignment prohibitions, collateral, GTC law, valuation of bond liabilities in securitisations, securitisation of overdrafts, insolvency-proof trust solutions, beneficial owners, reporting obligations under the CSRD and the special regime facilitating the transferability of monetary claims securitised under the EU Securitisation Regulation.