What legislation governs securitisation in your jurisdiction? Has your jurisdiction enacted a specific securitisation law?
Securitisation in France is mainly regulated by specific legislation relating to financing entities (OF) ie, the funds allowed to conduct securitisation activities. Such legislation has been codified in the French Monetary and Financial Code (MFC).
Banking monopoly rules are also of great relevance since an exemption from banking monopoly rules is generally necessary to conduct securitisation activities in France; this is because securitisation activities typically involve the acquisition or granting of receivables (either loans or commercial receivables), which are also typically considered as being a banking activity by French banking authorities and case law.
The securitisation legislation has been deeply renovated by a 2017 ordinance of the French government which entered into force on 3 January 2018 and replaced the old 1988 law. The purpose of this 2017 Ordinance is to create a broad category of OF that regroups the old FCT (mutual securitisation funds) and other types of regulated funds now authorised to provide financing either by granting loans or by purchasing receivables. This 2017 Ordinance also recaptures the provisions of the 1988 legislation establishing a robust legal framework for the transfer of receivables through a ‘true sale’ process.
The purpose of the 2017 legislation is to allow non-bank private investors to invest in any type of receivables (including debt, loans, commercial receivables or distressed debt) through a financing entity that can be structured either as a traditional securitisation entity (OT) or a ‘specialised financing entity’ (OFS).
This French legal framework aims at providing both the OT and OFS with a strong and clear legal regime that eliminates uncertainty regarding the true sale transfer of the receivables and reduces the seller’s or originator’s risk; both the OT or OFS can be created either as a corporation or as an organised and legally transparent co-ownership and are allowed to acquire receivables or to extend loans. In addition, the OFS are allowed to hold another type of asset and it qualifies as an alternative investment fund (AIF), regulated by the Alternative Investment Fund Managers Directive (Directive 2011/61/EU) (AIFM) and thus may benefit from the long-term European investment label (ELTIF).
The tax regime of the FCT will generally remain the same; the tax regime of OFS will shortly be clarified by the French tax authorities.Applicable transactions
Does your jurisdiction define which types of transactions constitute securitisations?
The MFC does not specifically define which transactions constitute a securitisation transaction; however, it defines the purpose of securitisation entities as being entities exposed to risks, including insurance risks, by acquiring receivables, granting loans, guarantees and security interest, underwriting risks through participation in credits, concluding forward financial instruments or contracts transferring insurance risks, and such securitisation entity finances or covers those risks by issuing securities (shares or debt instruments) or forward financial instruments or borrowing money or through other resources (L214 of the MFC).Market climate
How large is the market for securitisations in your jurisdiction?
The French securitisation market has followed the same trends as the European market. Since 2010, it has progressively re-established itself. According to a survey published by the association for financial markets in Europe, in 2017, France ranked second in Europe (after the UK) for the new issues of securitised receivables, which amounted to €36.9 billion in 2017 compared with €235.0 billion for the whole European Union.
For investors, securitisation offers interesting investment opportunities with yields that are on average higher compared with those offered by corporate bonds in particular on the lower tranches of collateralised loan obligation.
Residential mortgage loans and auto loans represent a significant part of the total amount of securitised assets.
Securitisation is of major importance to banks as a refinancing tool and for easing compliance with ratios imposed on banking institutions by the Basel Committee on Banking Supervision. In France, securitisation activity is fuelled by three main participants, including arranging banks, investors and legal counsel, developing the required high level of expertise.
Which body has responsibility for the regulation of securitisation?
The main market institution responsible for regulating securitisation is the Financial Markets Authority (AMF). The AMF General Regulation (RGAMF) contains a number of detailed rules applied to creating securitisation entities and their management by a licensed fund management company.
It should be noted that French securitisation entities are regulated entities that are not directly supervised by the French market authorities. However, their management companies and custodians are supervised entities. The management company is overseen by the AMF and the custodian is generally supervised by the French Prudential Supervisory Authority.
Additionally, the custodian has a legal duty to ensure, on an ongoing basis, that decisions made by the management company comply with the constitutive documents and regulations of the securitisation entity, and with the provisions of French law. The accounts of the securitisation entity are audited on a yearly basis.
If the relevant securitisation entity’s management strategy includes ‘active’ asset management or entry into credit derivatives’ transactions as a protection seller, the management company will need to be licensed for this purpose and will have to set up appropriate organisational and risk-control procedures.Licensing and authorisation requirements
Must originators, servicers or issuers be licensed?
No licence is required from originators for securitising receivables. An originator may be any type of commercial company, including any seller of goods, vehicles or commodities, any service provider or any banking or financial institution.
Securitisation entities themselves need not obtain a specific licence for issuing securities. However, specific requirements apply to public offers of securities (including the publication of a prospectus approved by the AMF), but this does not in itself involve requiring a specific licence for the issuer.
The servicing of the securitised receivables may be handled by the originator or by any entity that was in charge of the servicing before the transfer. The servicing may also be delegated to any other entity appointed for such purpose. No specific licence is required for servicing activities; but third-party servicers have to comply with the decree relating to amicable recovery activities in France.
Certain covered bonds’ companies issuing bonds such as the sociétés de crédit foncier must be licensed as a credit institution, but they are generally not considered to be securitisation entities.
French authorities consider the purchase of non-matured receivables on a regular basis to be a banking activity requiring a banking licence; however, this requirement does not apply to French OF and French securitisation entities, which benefit from a specific exemption from the banking monopoly rules. It should be noted that this exemption does not benefit foreign securitisation vehicles per se.
What will the regulator consider before granting, refusing or withdrawing authorisation?
As mentioned, no authorisation or licence is required for the creation of a securitisation vehicle under French law (see question 5). However, the management company and the custodian will need to hold the appropriate licence for acting in such a role in the operation of the relevant securitisation entity.
If the management company and the custodian do not comply with the prescribed organisational rules or the conduct rules applicable to their activities, or if they do not fulfil their commitments towards the regulator, their licence could be suspended or withdrawn.Sanctions
What sanctions can the regulator impose?
Sanctions that can be imposed by the regulator depend very much on the relevant type of laws or regulations breached.
Sanctions can be imposed on the management company or on the custodian if the creation or operation of a French securitisation entity violates the provisions of the MFC or the RGAMF. Such sanctions may encompass suspension or withdrawal of their licence or fines in certain situations, such as the failure to appoint an auditor or the communication of inaccurate information in respect of the securitisation entity.
According to article L571-3 of the MFC, violating French banking monopoly rules is sanctioned by three years’ imprisonment and a maximum fine of €375,000.
Violating the rules regarding the issuance of securities to the public is sanctioned, inter alia, by removal of authorisation, or a delisting.Public disclosure requirements
What are the public disclosure requirements for issuance of a securitisation?
Public disclosure requirements applicable to a securitisation transaction derive from several regulations, firstly the 2017 /2402 EU regulation imposes certain transparency rules to ‘simple, standardised and transparent’ (SST) securitisations; secondly, if the securitisation entity issues security by way of a public offer, it will have to comply with public offering rules.
SST disclosure obligations provide that the management company of the securitisation entity must verify that the originator, sponsor or such securitisation entity comply with their obligations to make certain information on the securitisation available under article 7 of the Regulation. This includes, inter alia, an obligation to make available: (i) information on the underlying exposures on a monthly or quarterly basis depending on the type of securitisation involved; (ii) all underlying documentation ‘that is essential for the understanding of the transaction’ and; (iii) monthly or quarterly investor reports, depending on the type of securitisation involved.
In the case of EU public securitisations, EU securitising entities are required under article 7(2) of the Regulation to make such information available via a securitisation repository. In the case of EU private securitisations, the management company should seek to ensure that the securitisation documentation confirms that such information will be provided to investors.
If the securitisation entity issues security by way of a public offer, it will have to comply with public offering rules. A French securitisation entity generally finances its activities by issuing debt instruments such as notes in the form of negotiable debt securities (TCNs). In addition, a fund without corporate personality can issue units and funds created as corporations can issue shares. All such instruments can be issued publicly or privately and may or may not be listed on a regulated exchange. The choice between the two approaches is mainly driven by the size and type of transaction, the type of investors targeted, their demand, desire and constraints.
To date, there have been a number of mutual fund (FCT) issues followed by a listing; but more unusually, FCT transactions giving rise to an offer to the public in the strict legal sense. Since solicitation of individual investors in respect of securities issued by securitisation entities is not permitted, public offerings of such instruments remain rare.
The public offering of units or notes issued by an FCT, or shares or notes issued by a securitised company (SDT) in Paris requires the preparation of an AMF-approved prospectus. This document takes the form of a document describing the issuer structure and securities’ features.
Under article L214-170 of the MFC, if a securitisation entity issues securities subject to a public offer, these securities must be rated, and the rating document must be annexed to the prospectus and sent to the potential subscribers. Ordinance 2013-676, dated 25 July 2013, makes this rating requirement no longer applicable when the securities are merely admitted to trading on a regulated market without being the subject of a public offer.
For securities that are privately placed and where no information memorandum is required, a rating is not required but may be sought for commercial reasons. It is possible to list FCT units or notes and SDT shares or notes in France as well as in other jurisdictions, such as Ireland or Luxembourg.
What are the ongoing public disclosure requirements following a securitisation issuance?
France has transposed the Transparency Directive 2004/109/EC, which establishes requirements in relation to the disclosure of periodic and ongoing information about issuers whose securities are already admitted to trading on a regulated market situated, or operating within an EU member state. This Directive only applies to securities listed on a regulated market. Although it does not apply to units issued by collective investment undertakings, it remains applicable to closed-end collective investment undertakings. Under the main rules imposed by the Directive:
- the issuer of the relevant securities shall make public its annual financial report at the latest four months after the end of each financial year and shall ensure that it remains publicly available for at least 10 years;
- the issuer of the relevant securities shall make public a half-yearly financial report covering the first six months of the financial year as soon as possible after the end of the relevant period, but at the latest three months thereafter. The issuer shall ensure that the half-yearly financial report remains available to the public for at least 10 years;
- by way of derogation the above rules do not exclusively apply to issuers of debt securities, the denomination per unit of which is at least €50,000; and
- the issuer of debt securities who is admitted to trading on a regulated market shall ensure that all holders of debt securities ranking pari passu are given equal treatment in respect of all the rights attached to those debt securities.
In addition, as mentioned above, SST disclosure obligations, if applicable, impose periodic and ongoing information obligations pursuant to article 7 of the Regulation; this includes inter alia, an obligation to make available: (i) information on the underlying exposures on a monthly or quarterly basis depending on the type of securitisation involved; (ii) monthly or quarterly investor reports, depending on the type of securitisation involved.
Outside licensing considerations, are there any restrictions on which entities can be originators?
As already mentioned, French authorities consider the purchase of non-matured receivables on a regular basis to be a banking activity requiring a banking licence (see question 5).
French financing entities, whether a traditional OT or OFS, benefit from a specific exemption of the banking monopoly rule (see question 5). When operating on French territory, foreign securitisation vehicles should ensure that their activities benefit from a similar exemption.Receivables
What types of receivables or other assets can be securitised?
Any type of receivable may be securitised including, inter alia:
- bank loans, commercial receivables and lease receivables;
- existing or future receivables (the amount and maturity of which are not determined on the relevant transfer date);
- defaulted or non-performing receivables or any type of debt instrument governed by French law or any foreign law; or
- future cash flows.
Securitisation can, for example, encompass residential and commercial mortgage loans and non-mortgage assets such as:
- trade receivables;
- credit card balances;
- consumer loans;
- lease receivables; and
- motor vehicle loans.
Securitisation of an insurance risk is particularly considered by the law.
In practical terms, securitised receivables must be transferable. In other words, no contractual provision of the underlying contract must prohibit or restrain the transfer of these receivables.
At the time they are transferred to the securitisation entity, securitised receivables must be identifiable; in other words, they must be sufficiently defined so that they can be easily and specifically transferred.Investors
Are there any limitations on the classes of investors that can participate in an offering in a securitisation transaction?
Securities issued by securitised entities are generally offered to professional investors through private placements. Any type of investor can participate in an offering made by a securitisation entity, however:
- investors from non-cooperative jurisdictions may be prevented from participating in such offerings since substantial withholding taxes will apply to coupon payments under the issued securities; and
- offerings directed to individuals may be held within the rules applying to public offers whereby a full prospectus approved by the AMF may need publishing and individual investors prohibited for such securities.
Securitisation funds called fonds de prêt à l’économie are a special type of securitisation fund created in 2013 to encourage insurance companies to invest in private-sector company debt. They must comply with certain criteria laid down by the insurance code (eg, no tranching and holding assets in accordance with specific criteria). Such funds issue non-rated and non-eligible securities.Custodians/servicers
Who may act as custodian, account bank and portfolio administrator or servicer for the securitised assets and the securities?
The entity acting as custodian of a French securitisation entity must be a French credit institution, the French branch of a European credit institution or certain other institutions designated by a specified regulation.
It should be noted that the custodian acts as the depository of the receivables acquired by the FCT and of its other liquid assets.
The entity acting as servicer of a French securitisation entity can be the originator of the securitised receivables or any third party, provided that the debtor is notified of this.
It should be noted that the servicing of the securitised assets encompasses several actions including, inter alia:
- administering the securitised receivables;
- collecting the cash generated by these assets; and
- ensuring regular reports to the administrator managing the special purpose vehicle (SPV).
Are there any special considerations for securitisations involving receivables with a public-sector element?
According to French law, receivables can be transferred or securitised even if the debtor is a public body or government entity. However, securitisation of receivables with a public-sector element requires particular attention.
The main concern is ensuring that any recourse against the public entity is transferred to the securitisation entity. It may be necessary to combine the general rules of transfer with specific rules applicable to those public entities such as, for instance, the notification of transfer to the public accountant of the relevant public entity if the securitisation entity seeks direct payment. In addition, the transfer to the securitisation entity of unconditional payment undertakings of public entities may require special approval by such entities.
Transactional issuesSPV forms
Which forms can special purpose vehicles take in a securitisation transaction?
Since the 2017 reform (see question 1), securitisation transactions may be implemented through two types of OF, which can be structured as either an OT or an OFS.
OTs can be created as a corporation or a special form of transparent entity. Legally speaking, an FCT is a co-ownership of securitised receivables. It is created by an independent management company acting as the fund manager, in accordance with article L214-181 of the MFC. It has no shareholders nor share capital and it corresponds with the common method used to securitise receivables under French law. An FCT can be created with several components, whose assets and liabilities are segregated from those within the FCT’s other components. French securitisation entities can also be created as a corporation or an SDT. Such a corporation would be managed by a licensed management company and its assets held through a custodian. An SDT can provide significant advantages in transactions where the benefits of international tax treaties are sought. Its creation requires obtaining a tax ruling confirming its tax status.
An OFS is a new tool available for securitisation transactions, which are funds that qualify as an AIF regulated by the AIFM directive. They can be managed by fund managers complying with the AIFM and may benefit from the ELTIF that allows investments by a larger base of investors interested in long-term financing. As OT, an OFS can be created as legally transparent entities or a corporation.SPV formation process
What is involved in forming the different types of SPVs in your jurisdiction?
Creating an OF involves the following steps in terms of timing, costs and organisation:
- the selection of a licensed management company, a custodian and an auditor;
- the drafting and negotiation of the fund regulations or constitutive documents, a receivable purchase agreement, a servicing agreement and various ancillary agreements; and
- the placement with investors of the securities issued by the securitisation vehicle (either through a public or private placement).
The costs include initial the outlay and ongoing expenses.
The main advantage of a French OF, when compared to an SVP or similar foreign vehicles, is their regulated status: investors are protected by French legal provisions, which lay down the main principles applicable to the OF, and by the regulation applying to the manager itself and the AMF supervision.Governing law
Is it possible to stipulate which jurisdiction’s law applies to the assignment of receivables to the SPV?
Yes. According to article L214-169 of the MFC, the transfer of receivables to a French securitisation entity may be governed by a law other than French law.
This reflects Regulation (EC) No. 593/2008 (Rome I), whereby an international contract shall be governed by the law chosen by the parties. However, should all elements relevant to the situation at the time of the choice be connected with France alone, such a choice of law will not prejudice the application of mandatory rules in France. Moreover, the contract can be qualified as an international contract if there is a non-French element and the law must not be chosen to avoid French public policy considerations.Asset acquisition and transfer
May an SPV acquire new assets or transfer its assets after issuance of its securities? Under what conditions?
Yes. A French securitisation entity is allowed to purchase new receivables after the initial purchase and to issue additional units under two main conditions:
- the regulations of the securitisation entity must specify the circumstances and conditions under which it may purchase additional receivables; and
- an additional transfer deed must be signed in order to transfer the new assets to the fund.
What are the registration requirements for a securitisation?
There is no registration requirement for the creation of an OF under French law (without specific circumstances).Obligor notification
Must obligors be informed of the securitisation? How is notification effected?
There is no obligation to notify obligors about the securitisation. Under the French Securitisation Law, the transfer of receivables to the SPV is effective as of the date indicated on the transfer deed, without any requirement for prior notification to the obligors or other formalities. It is considered as a silent transfer. The receivable transfer occurs as of the date indicated on the transfer date. Consequently, the assignment becomes effective between the parties and enforceable against third parties. The obligors must be notified if the servicer of the securitised receivables is changed.
What confidentiality and data protection measures are required to protect obligors in a securitisation? Is waiver of confidentiality possible?
The rules relate to the protection of confidentiality, banking secrecy or to the protection of personal data remain applicable after securitisation of the relevant receivables and may restrain the transfer of information to investors or to the securitisation entity.
For example, the law on treatment of personal data requires that any treatment of personal information regarding individuals is notified to the French Data Protection Authority. It also limits the transfer of personal data and aims to ensure that personal information is adequately stored and treated, ensuring that individuals have access to information relating to them.
Furthermore, when the assignor of receivables is a credit institution, confidential information is covered by strict banking secrecy legislation, prohibiting the transfer of said information to third parties without prior consent of the obligors concerned.
A waiver of confidentiality by the person protected by it is generally available. It must be foreseen in the contract ab initio and it is necessary to name organisations to which information could be given, such as the French Tax Administration.Credit rating agencies
Are there any rules regulating the relationship between credit rating agencies and issuers? What factors do ratings agencies focus on when rating securitised issuances?
The relationship between rating agencies and French securitisation entities is not specifically regulated by French law. It should be noted that recent legislation removed a former obligation to procure the rating of securities issued by securitisation entities that are listed.
When a rating is sought, the rating agencies implement a rating methodology that involves multiple legal and economic factors, and depends on the type of securitised receivables. Rating agencies will look in particular at the structural features of the securitisation entity, which is expected to be bankruptcy remote and tax exempt, and of a ‘true sale’ transfer of assets and of the related security. Rating agencies also focus on the quality of securitised assets and of the election process. Indeed, rating agencies will analyse the liquidity of assets pooled into the FCT or SDT, the maturity of those assets and the strategy of the management company, especially regarding how it will react if there is lack of liquidity with its assets. The aim of the rating agency is to determine if the management company would be able to cope with its investment’s decisions regarding:
- credit risks;
- servicer performance risk;
- guarantor’s risk;
- legal risks attached to the fund;
- sovereign risk;
- interest rate;
- currency risks; and
- repayment risks.
Under French law, securitisation entities may issue bonds or commercial paper (TCNs). No rating is required when there is no public offering of bonds. TCNs issued by a securitisation entity need not be rated if the holders of such TCN have the same rights in terms of ranking and are permanently backed by eligible receivables allowing a refinancing through the euro system in accordance with Decree No. 2014-361 of March 2013.Directors’ and officers’ duties
What are the chief duties of directors and officers of SPVs? Must they be independent of the originator and owner of the SPV?
An OF is not operated like an SPV, but is managed by a licensed management company whose chief duty is to act in an independent manner in the sole interest of the note holders, having regard to the fund regulations. The management company acts under the control of the custodian. FCTs have no directors or officers. SDTs have directors, but all day-to-day management functions are delegated to the management company.
The management company has a duty of best execution, meaning that a given operation will be finalised under the best market conditions for its client.
The fund management company must be independent of the originator and does not have to follow any instruction given by the originator.
If the securitisation entity is a corporation, it has to be managed by a licensed management company acting independently in the interest of the holders of securities issued by it.Risk exposure
Are there regulations requiring originators and arrangers to retain some exposure to risk in a securitisation?
Retention rules have been imposed in securitisation transactions by several EU rules, including the Capital Requirements Regulation (EU) No. 575/2013 and the Capital Requirements Directive IV. Under these rules, originators or sponsors or initiators of a securitisation transaction must retain a 5 per cent exposure in the relevant securitisation. Retention rules have been confirmed and refined by the new Securitisation Regulation (EU) No. 2017/2402 and the related Capital Requirements Regulation (EU) No. 575/2013 amending Regulation (EU) No. 2017/2401, which impose a new ‘direct approach’ whereby originators, sponsors and original lenders have a direct obligation to retain risk; this approach complementing the existing ‘indirect approach’ that mainly imposed on investors a duty to check that retention rules have been complied with.
Before the 2008 global financial crisis, credits could be originated and distributed without keeping any risk on a balance sheet. This has been changed by regulators with a view to aligning the interests of investors with those of the originators and sponsors of initiators.
What types of collateral/security are typically granted to investors in a securitisation in your jurisdiction?
It should be noted that French securitisation entities are bankruptcy-remote by virtue of the law. Therefore, investors generally do not seek security on their assets, although this has been permitted since a 2008 ordinance whereby French securitisation entities are allowed to provide collateral or security interests to investors over the receivables or other assets held by the fund. There is no specific requirement in relation to the type of security. Consequently, a pledge can be created over securitised receivables.
Credit enhancement is also possible through guarantees provided by:
- the originator;
- the originator’s affiliate;
- a credit establishment; or
- an insurance company.
Other methods include the issuance of specific units, over-collateralisation or cash reserve funds.Perfection
How is the interest of investors in a securitisation in the underlying security perfected in your jurisdiction?
When a pledge of receivables is created in favour of investors, the mere execution of the pledge agreement is sufficient to ensure perfection of the pledge towards third parties. Pledge notification improves protection but is not a condition of the pledge’s validity.
More generally, protection of the investor’s interest is ensured by the French securitisation entity’s management company. To some extent, the management company plays the same role as a security trustee because it will ensure that all securitised receivables are collected and the corresponding collections are distributed in accordance with the fund’s regulations.Enforcement
How do investors enforce their security interest?
As described in question 26, the management company of the securitisation entity will enforce any security interest or right created in favour of the securitisation entity.
If the investors have been given any security interest in the fund’s assets, they should be able to enforce it through their representatives if the securities are bonds governed by French law, and if a bond representative has been appointed.Commingling risk
Is commingling risk relating to collections an issue in your jurisdiction?
In securitisation transactions where the originator remains in charge of the collection of the securitised receivables, there is a risk that, upon a bankruptcy affecting the originator, the proceeds of the securitised receivables are commingled with the assets of the originator and retained by the bankruptcy administrator.
This risk can be avoided or mitigated by creating a special collection account dedicated to the collection of the securitised receivables. The sums credited on this account are not available to the creditors of the originator if it becomes bankrupt, according to article D214-228 of the MFC.
What are the primary tax considerations for originators in your jurisdiction?
The primary tax considerations for originators include:
- value added tax (VAT) treatment of securitised receivables;
- exemption from VAT on the sale and transfer of receivables by the originator to the securitised entity;
- whether any profits generated by the assignment of receivables to an FCT are taxable;
- if the servicing agent’s fees are exempt from VAT; and
- withholding tax on payments received in relation to foreign trade receivables.
What are the primary tax considerations for issuers in your jurisdiction? What structures are used to avoid entity-level taxation of issuers?
The primary tax considerations for securitisation entities acting as issuer include:
- whether the FCTs are exempt from corporation tax in France (article 208(3)-octies of the General Tax Code);
- whether the issuance of notes by the SPV is exempt from any stamp duty; and
- whether the management company’s fees and other fees are exempted from VAT.
The main structure used to avoid entity-level taxation is the FCT; securitisation implemented through corporations having the form of an SDT may also benefit from a specific tax regime, but in the absence of clarity on certain aspects it may be advisable to seek a specific tax ruling.Investors
What are the primary tax considerations for investors?
The primary tax considerations for investors mainly comprise the absence of withholding tax on securities issued by the securitisation entity and its tax treatment. As in many countries, the payment of interest and other income on debt securities established or domiciled in a non-cooperative state or territory within the meaning of article 238-0 A of the French Tax Code may be subject to a 75 per cent withholding tax.
How are SPVs made bankruptcy-remote?
The MFC (article L214-175 III of the MFC) expressly provides that bankruptcy law (contained in Book No. VI of the Commercial Code) does not apply to French securitisation entities, which means, in effect, that they are bankruptcy-remote.
In addition, a number of structuring features are generally used to mitigate potential insolvency risk. These include limiting the securitisation entity’s activities to securitisation, ensuring that the securitisation entity has no contractual liabilities unrelated to the relevant securitisation and ensuring that the investor’s and creditor’s recourse is limited to the securitisation assets.True sale
What factors would a court in your jurisdiction consider in making a determination of true sale of the underlying assets to the SPV (eg, absence of recourse for credit losses, arm’s length)?
In making a determination of whether a true sale of the securitised receivables to a French securitisation entity has been implemented, a court would look at whether the requirements of article D214-219 of the MFC are fulfilled. The main requirements are the execution and remittance of a transfer deed on the transfer date, and the payment of the agreed purchase price. The existence of recourse against the originator should not affect the true sale of the receivables.
The risk of clawback remains remote, but may arise if the seller of the receivables falls under a reorganisation or liquidation proceeding; then a sale of receivables may be challenged by the insolvency administrator during a suspect period fixed by the judge of up to 18 months prior to the opening of insolvency proceedings. However, the insolvency administrator must then demonstrate that the sale was made for inadequate value, or that the fund had actual knowledge or was aware of the seller’s insolvency at the time of the purchase.Consolidation of assets and liabilities
What are the factors that a bankruptcy court would consider in deciding to consolidate the assets and liabilities of the originator and the SPV in your jurisdiction?
Under French insolvency law, the risk of consolidating the asset and liabilities of a company with the assets and liabilities of another company is limited to specific circumstances, which include the commingling of assets or their de facto management.
A commingling of assets is unlikely to happen in the context of a securitisation transaction, since the securitisation company will have its own accounts and its assets will be held by a custodian, strictly separated from those of the originator. Even when the originator remains as the financial servicer for the receivables transferred to the SPV, the allocation of all amounts he or she receives into an affected, specially dedicated account should avoid that risk by making the management company the unique proprietor of the money held on the account.
The risk of a de facto management of the securitisation entity by the originator is also unlikely to be characterised, since the securitisation entity is a separate entity from the originator, and is managed by a licensed management company (not by the originator), with no interference by the originator in the daily operation of the fund.
Updates and trendsRecent developments
Are there any rules governing securitisations pending in your jurisdiction or reforms under way, such as prohibitions on financial firms betting against the securities they package, improved disclosure and oversight of the asset-backed securities market, rules limiting bank compensation structures that incentivise risk, etc?No updates at this time.