LUXEMBOURG Law and Practice Contributed by: Vassiliyan Zanev and Natalja Taillefer, Loyens & Loeff Luxembourg S.à r.l.
The possibility to establish a securitisation undertaking as an SCS or an SCSp provides for additional structuring opportunities for securiti - sation transactions, given the (in principle) tax- transparent nature of such partnerships. A securitisation undertaking can also be set up as a fund (fonds de titrisation ), managed by a Luxembourg-based management company ( société de gestion ) in accordance with its man - agement regulations. A securitisation fund does not have legal personality and can be structured as (i) a co-ownership of assets or (ii) as a fiduci - ary arrangement where the assets are held by the management company acting as fiduciary for the account of the investors. Securitisation funds and securitisation compa - nies are required to be registered with the Lux - embourg Register of Commerce and Companies (RCS). Please also see 6.2 SPEs for the compartmen - talisation option of Luxembourg securitisation undertakings. AIFMD AIFMD and AIFM Law address the question of whether an SPE can be considered as an alter - native investment fund (AIF). Pursuant to the AIFMD and the AIFM Law, an SSPE does not constitute an AIF. However, the definition of an SSPE under the AIFMD is dif - ferent from the definition of an SSPE under the Securitisation Regulation. SSPEs are defined in the AIFMD as entities whose sole purpose is to carry on a securitisation or securitisations within the meaning of Regulation ECB/2008/30 of the European Central Bank of 19 December 2008 concerning statistics on the assets and liabili - ties of financial vehicle corporations engaged in
securitisation transactions and other activities that are appropriate to accomplish that purpose. Regulation ECB/2008/30 has been repealed by Regulation ECB/2013/40. According to the Securitisation FAQ (with refer - ence to the guidance note on the definitions of “financial vehicle corporation” and “securitisa - tion” under Regulation ECB/2008/30 issued by the ECB), securitisation undertakings issuing collateralised loan obligations are considered as being engaged in securitisation transactions and, as a result, are not subject to the AIFM Law. In contrast, entities that primarily act as “first” lenders (ie, originating new loans) are not con - sidered as being engaged in securitisation trans - actions and will thus fall within the scope of the AIFM Law. The same applies to securitisation undertakings issuing structured products that primarily offer a synthetic exposure to assets other than loans (non-credit-related assets) and where the credit risk transfer is only ancillary. Independently from their potential qualifica - tion as SSPEs (for the purpose of the AIFMD), securitisation undertakings that only issue debt instruments should not, according to the Secu - ritisation FAQ, constitute AIFs for the purpose of the AIFM Law. Similarly, irrespective of whether securitisation undertakings qualify as SSPEs for the purpose of the AIFMD, it is the view of the CSSF that securitisation undertakings that are not managed in accordance with a “defined investment policy” (within the meaning of the AIFM Law) do not constitute AIFs. 4.11 Activities Avoided by SPEs or Other Securitisation Entities Public Issuance of Financial Instruments A securitisation undertaking issuing securities to the public on a continuous basis within the meaning of the Securitisation Law (see 4.4 Peri-
236 CHAMBERS.COM
Powered by FlippingBook