November 29, 2013
The Central Bank of Ireland has recently clarified that:
- securitisation companies that have registered with the Central Bank as “financial vehicle corporations” pursuant to Regulation (EC) No 24/2009 of the European Central Bank (the “FVC Regulation“); and / or
- securitisation companies funded by way of debt or other non-equity instruments,
are outside the scope of the Alternative Investment Fund Managers Directive (Directive 2011/61/EU) (the AIFMD) and the Commission Delegated Regulation (EU) No 231/2013 as transposed into Irish law under the European Union (Alternative Investment Fund Managers) Regulations, 2013 (the “AIFM Regulations“).Consequently they do not need to seek authorization as, or appoint, an AIFM. The Central Bank of Ireland does not intend to do that at least for so long as ESMA continues its current work on this matter.
Section 110 of the Irish Taxes Consolidation Act 1997 creates the legislative framework for securitisation companies in Ireland. Such companies are commonly called “Section 110” companies. Many existing and newly established section 110 companies would be required by the FVC Regulation to register with the Central Bank as “financial vehicle corporations”, by virtue of the fact that they carry out, or intend to carry out, one or more “securitizations” (within the meaning of the FVC Regulation). Following the clarifications, it is now clear that AIFMD and the AIFM Regulations do not apply to such companies.
AIFMD and the AIFM Regulations also do not apply to section 110 companies that are not required to register as FVCs, provided they are not engaged in the activity of issuing shares or units. This would include, section 110 companies that are not FVCs, where they are funded by entering into loans, issuing debt securities, and / or issuing non-debt instruments (such as certificates, warrants and derivative instruments) that do not convert into, and are not convertible into, shares or units giving an ownership interest in the company.