The securitisation risk retention provisions of Article 122a of the CRD II were replaced by the Capital Requirements Regulation ("CRR") as per 1 January 2014. As of this date the related guidance on Article 122a of the European Banking Authority ("EBA") no longer applies and the Regeling Securitisaties Wft 2010 was withdrawn. New regulatory guidance was published by the EBA on 17 December 2013 in the form of the final draft regulatory technical standards (the "RTS") and the accompanying implementing technical standards (the "ITS"). The draft RTS and ITS were first released by the EBA in May 2013 as a consultation document and have been the subject of consultations with market participants.
The RTS and the ITS will become effective following the required adoption by the European Commission ("EC"), which is expected in the first half of 2014, and provided that no objection is made by the European Parliament ("the EP") and the Council of the European Union ("the Council"). As long as the RTS and the ITS do not apply, there may be some uncertainty regarding the interpretation of the risk retention rules to the extent such interpretation is not clear from the CRR. This may affect new securitisation transactions that are not straightforward in terms of risk retention until the RTS and the ITS have been adopted.