1.

In Section 5.1.3, the following sentence is added:

‘The ECB reserves the right to take any action it deems appropriate in order to correct an error in the tender announcement, including cancelling or interrupting a tender under execution.’;

2.

In Section 5.1.6, the following sentence is added:

‘If the tender result contains erroneous information with respect to any of the above, the ECB reserves the right to take any action it deems appropriate to correct such erroneous information.’;

3.

Section 6.2.1.1 is replaced by the following:

‘6.2.1.1.   Type of asset

1.   Common eligibility requirements

It must be a debt instrument having:

The following coupon structures are notably excluded: all floaters linked to foreign currency interest rates, commodity and equity indices and exchange rates, dual floaters and floaters linked to swap spreads or to another combination of indices, and any kind of ratchet and range accrual coupons, as well as inverse floaters and coupons that depend on a credit rating. Moreover, complex term structures such as target redemption notes and options to change the coupon type by making use of additional calling rights are excluded.

Eligible coupons should have no issuer optionalities, i.e. they should not allow changes in the coupon definition during the life of the instrument that are contingent on an issuer’s decision. In addition, if caps or floors exist, these shall be fixed and pre-defined. The classification of an instrument as regards its coupon, in case the coupon is multi-step, will be based on a forward-looking perspective.

Non-compliance with the above-mentioned eligibility criteria also precludes assets from being eligible even if they only apply to parts of the remuneration structure (such as a premium) and even if a non-negative coupon payment and a repayment of at least the principal amount is explicitly guaranteed.

The requirements under paragraph 1(a) and (b) apply until the obligation has been redeemed. Debt instruments may not give rise to rights to the principal and/or the interest that are subordinated to the rights of holders of other debt instruments of the same issuer.

2.   Additional eligibility criteria applicable to asset-backed securities

For the purpose of the Eurosystem legal framework related to monetary policy, covered bonds are not considered asset-backed securities.

Paragraph 1(a) does not apply to asset-backed securities. The Eurosystem assesses the eligibility of asset-backed securities against the additional criteria laid down in this Section.

The cash flow generating assets backing the asset-backed securities must fulfil the following requirements:

As laid down in Section 6.2.1.7, the issuer of an asset-backed security must be established in the EEA.

In cases where originators or, if applicable, intermediaries, were incorporated in the euro area, or in the United Kingdom, the Eurosystem has verified that there were no severe clawback provisions in those jurisdictions. If the originator or, if applicable, the intermediary, is incorporated in another EEA country, the asset-backed securities can only be considered eligible if the Eurosystem ascertains that its rights would be protected in an appropriate manner against clawback provisions considered relevant by the Eurosystem under the law of the relevant EEA country. For this purpose, an independent legal assessment in a form acceptable to the Eurosystem must be submitted setting out the applicable clawback rules in the country, before the asset-backed securities can be considered eligible. To decide whether its rights are adequately protected against clawback rules, the Eurosystem may require other documents, including a solvency certificate from the transferee, for the suspect period. Clawback rules which the Eurosystem considers to be severe and therefore not acceptable include rules under which the sale of cash flow generating assets backing the asset-backed securities can be invalidated by the liquidator solely on the basis that it was concluded within a certain period (suspect period) before the declaration of insolvency of the seller (originator/intermediary), or where such invalidation can only be prevented by the transferee if they can prove that they were not aware of the insolvency of the seller (originator/intermediary) at the time of the sale.

Within a structured issue, in order to be eligible, a tranche (or sub-tranche) may not be subordinated to other tranches of the same issue. A tranche (or sub-tranche) is considered to be non-subordinated vis-à-vis other tranches (or sub-tranches) of the same issue if, in accordance with the priority of payment applicable after the delivery of an enforcement notice, as set out in the prospectus, no other tranche (or sub-tranche) is given priority over that tranche or sub-tranche in respect of receiving payment (principal and interest), and thereby such tranche (or sub-tranche) is last in incurring losses among the different tranches or sub-tranches of a structured issue. For structured issues where the prospectus provides for the delivery of an acceleration and an enforcement notice, non-subordination of a tranche (or sub-tranche) must be ensured under both acceleration and enforcement notice-related priority of payments.

For asset-backed securities to become or to remain eligible for Eurosystem monetary policy operations, the Eurosystem requires comprehensive and standardised loan-level data on the pool of cash flow generating assets underlying an asset-backed security to be submitted by the relevant parties in the asset-backed security, in accordance with Appendix 8.

To determine the eligibility of asset-backed securities, the Eurosystem takes into account the data entered in the mandatory fields in the relevant loan-level data reporting template, within the meaning of Appendix 8. In its eligibility assessment the Eurosystem takes account of: (a) any failure to deliver data; and (b) how frequently individual loan-level data fields are found to contain no meaningful data.

In order to be eligible, an asset-backed security must be backed by cash flow generating assets which the Eurosystem considers to be homogeneous, i.e. that cash flow generating assets backing an asset-backed security consist of only one type of assets belonging to either residential mortgages, commercial real estate mortgages, loans to small- and medium-sized enterprises, auto loans, consumer finance loans or leasing receivables. Asset-backed securities are not eligible for Eurosystem monetary policy operations if the pool of assets underlying them is comprised of heterogeneous assets, because they cannot be reported using a single template for the specific asset class (5).

The Eurosystem reserves the right to request from any relevant third party, e.g. the issuer, the originator or the arranger, any clarification and/or legal confirmation that it considers necessary to assess the eligibility of asset-backed securities and with regard to the provision of loan-level data. Non-compliance with such requests may lead to suspension of or refusal to grant eligibility to the asset-backed security transaction in question.

3.   Additional eligibility criteria applicable to covered bonds

Covered bonds shall be subject, from 31 March 2013, to the following additional requirements:

The cover pool of a covered bond shall not contain asset-backed securities, with the exception of asset-backed securities which:

Covered bonds which were on the list of eligible asset-backed securities from 28 November 2012 and did not comply with requirements (a) to (c) will remain eligible until 28 November 2014.

4.

In Section 6.2.1.7, footnote 58 is deleted;

5.

In Section 6.2.2, footnote 60 is deleted;

6.

Section 6.2.2.1 is amended as follows:

7.

In Section 6.2.3, the following paragraph is inserted:

‘Despite their eligibility, national central banks may decide not to accept the following marketable or non-marketable assets as collateral from a counterparty:

8.

Section 6.2.3.2 is replaced by the following:

‘6.2.3.2.   Rules for the use of eligible assets

Marketable assets can be used for all monetary policy operations which are based on underlying assets, i.e. reverse and outright open market transactions and the marginal lending facility. Non-marketable assets can be used as underlying assets for reverse open market transactions and the marginal lending facility. They are not used in Eurosystem outright transactions. All marketable and non-marketable assets can also be used as underlying assets for intraday credit.

Irrespective of the fact that a marketable or non-marketable asset fulfils all eligibility criteria, a counterparty may not submit as collateral any asset issued or guaranteed by itself or by any other entity with which it has close links (6).

“Close links” means any of the following situations where the counterparty is linked to an issuer/debtor/guarantor of eligible assets:

For monetary policy implementation purposes, in particular for the monitoring of compliance with the rules for the use of eligible assets concerning close links, the Eurosystem internally shares information on capital holdings provided by supervisory authorities for such purposes. The information is subject to the same secrecy standards as applied by supervisory authorities.

The above provisions concerning close links do not apply to: (a) close links between the counterparty and an EEA public sector entity which has the right to levy taxes, or in the case where a debt instrument is guaranteed by an EEA public sector entity which has the right to levy taxes; (b) covered bank bonds issued in accordance with the criteria set out in Part 1, points 68 to 70 of Annex VI to Directive 2006/48/EC; (c) cases in which debt instruments are protected by specific legal safeguards comparable to those instruments given under (b) such as in the case of: (i) non-marketable RMBDs which are not securities; or (ii) covered bank bonds for which all criteria set out in Part 1, points 68 to 70 of Annex VI to Directive 2006/48/EC are complied with, except for the limits on guaranteed loans in the cover pool.

Moreover, a counterparty may not submit as collateral any asset-backed security if the counterparty (or any third party with which it has close links) provides a currency hedge to the asset-backed security by entering into a currency hedge transaction with the issuer as a hedge counterparty or provides liquidity support for 20 % or more of the outstanding amount of the asset-backed security.

All eligible marketable and non-marketable assets must be usable in a cross-border context throughout the euro area. This implies that all Eurosystem counterparties must be able to use eligible assets either through links with their domestic SSSs in the case of marketable assets or through other eligible arrangements to receive credit from the NCB of the Member State in which the counterparty is established (see Section 6.6).

A counterparty submitting an asset-backed security which has close links to the originator of the underlying assets of the asset-backed security must inform the Eurosystem of any planned modification to that asset-backed security that could potentially have an impact on its credit quality, e.g. alteration in the interest rate due on the notes, a change in the swap agreement, changes in the composition of underlying loans not provided for in the prospectus, changes to the priority of payments. The Eurosystem must be given one month prior notice of any modification to be made to a submitted asset-backed security. Moreover, at the time of the asset-backed security’s submission, the counterparty should provide information on any modification that took place in the preceding six months. In line with Section 6.2, the Eurosystem does not give pre-modification advice.

Table 4

Eligible assets for Eurosystem monetary policy operations

9.

In Section 6.3.2, footnote 72 is deleted;

10.

In Section 6.3.4.1, the following paragraph is added:

‘An ECAI participating in the ECAF is subject to the Eurosystem performance monitoring process (see Section 6.3.5). Together with the performance monitoring data submitted, a signed certification from the CEO, or authorised signatory with responsibility for the audit or compliance function within the ECAI, of the ECAI confirming the accuracy and validity of the performance monitoring information shall also be submitted.’;

11.

In Section 6.3.4.4, the third subparagraph is replaced by the following:

‘An RT provider participating in the ECAF needs to subject itself by agreement to the Eurosystem performance monitoring process (10) (see Section 6.3.5). The RT provider is obliged to set up and maintain the necessary infrastructure for monitoring the static pool. Construction and evaluation of the static pool have to be in line with the general requirements on performance monitoring under the ECAF. The RT provider has to undertake to inform the Eurosystem of the results of the performance evaluation as soon as it has been carried out by the RT provider. Together with the performance monitoring data submitted, a signed certification from the CEO, or authorised signatory with responsibility for the audit or compliance function within the RT, confirming the accuracy and validity of the performance monitoring data must also be submitted. They have to undertake to keep internal records of static pools and default details for five years.

12.

Section 6.3.5 is replaced by the following:

‘6.3.5.   Performance monitoring of credit assessment systems

All credit assessment systems are subject to performance monitoring within the ECAF. For each credit assessment system, the ECAF performance monitoring process consists of an annual ex-post comparison of: (a) the observed default rates for all eligible entities and instruments rated by the credit assessment system, where these entities and instruments are grouped into static pools based on certain characteristics, e.g. credit rating, asset class, industry sector, credit assessment model; and (b) the appropriate credit quality threshold of the Eurosystem given by the benchmark PD (two benchmark PDs are considered: a 0,10 % PD over a one-year horizon which is considered equivalent to a credit assessment of credit quality step 2; and a 0,40 % PD over a one-year horizon which is considered equivalent to a credit assessment of credit quality step 3 of the Eurosystem harmonised rating scale). The aim of this process is to ensure that the mapping of the ratings provided by the credit assessment system to the Eurosystem harmonised rating scale remains appropriate and that the results from credit assessments are comparable across systems and sources.

The first element of the process is the annual compilation by the credit assessment system provider of the list of entities and instruments with credit assessments that satisfy the Eurosystem credit quality threshold at the beginning of the monitoring period. This list shall then be submitted by the credit assessment system provider to the Eurosystem, using the template provided by the Eurosystem, which includes identification, classification and credit assessment related fields. The second element of the process takes place at the end of the 12-month monitoring period when the credit assessment system provider updates the performance data for the entities and instruments on the list. The Eurosystem reserves the right to request any additional information required to conduct performance monitoring.

The observed default rate of the static pools of a credit assessment system recorded over a one-year horizon serves as input to the ECAF performance monitoring process, which comprises an annual rule and a multi-period assessment. In case of a significant deviation between the observed default rate of the static pools and the credit quality threshold over an annual and/or a multi-annual period, the Eurosystem consults the credit assessment system provider to analyse the reasons for that deviation. This procedure may result in a correction of the credit quality threshold applicable to the system in question.

The Eurosystem may decide to suspend or exclude the credit assessment system where no improvement in performance is observed over a number of years. In addition, in the event of an infringement of the rules governing the ECAF, the credit assessment system will be excluded from the ECAF. If inaccurate or incomplete information is provided by a representative of the credit assessment system for the purposes of performance monitoring, the Eurosystem may abstain from exclusion in case of minor irregularities.’;

13.

Section 6.4.2 is amended as follows:

14.

In Section 6.5.1, paragraphs (a) and (b) are replaced by the following:

15.

In Appendix 6, Section 1 is replaced by the following:

‘1.   Financial Penalties

If a counterparty infringes the rules on tender operations (11), bilateral transactions (12), the use of underlying assets (13), end-of-day procedures or access conditions for the marginal lending facility (14), the Eurosystem shall apply financial penalties as follows:

16.

Appendix 7 is replaced by the following:

17.

The following Appendix 8 is added: