Commission Implementing Regulation (EU) 2023/2083

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THE EUROPEAN COMMISSION,Having regard to the Treaty on the Functioning of the European Union,Having regard to Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and credit purchasers and amending Directives 2008/48/EC and 2014/17/EU^note, and in particular Article 16(6) thereof,Whereas:

(1)Before they purchase non-performing credit agreements, prospective buyers should have access to granular credit agreement-by-credit agreement information about the non-performing credit agreement itself, the counterparty, the collateral, the guarantees, the legal and enforcement procedures and the historical collection and repayment history. Standardisation of that information by means of common templates, data fields, definitions and characteristics should facilitate the sale of non-performing credit agreements on secondary markets and should reduce entry barriers for small credit institutions and smaller investors wishing to conclude transactions in respect of non-performing credit agreements.

(2)Credit institutions should use transaction data templates for non-performing credit agreements when selling or transferring non-performing credit agreements that are included in a portfolio for sales or transfers, in order to provide prospective buyers with all necessary information thereby enabling them to properly assess the value of the creditor’s rights under the non-performing credit agreement, or of the non-performing credit agreement itself, and the likelihood of recovery of the value. Applying such data templates to credit agreements would also reduce information asymmetries between prospective buyers and sellers of credit agreements and, thus, contribute to the development of a functioning secondary market in the Union. Credit institutions should use the templates in sales or transfers of such credit agreements involving a change to the lender of record under the credit agreement concerned.

(3)In order to provide prospective buyers with all necessary information to make an informed decision, credit institutions should use transaction data templates for transfers of non-performing credit agreements, including transfers to other credit institutions. The data templates should be proportionate to the nature and size of credits and credit portfolios. For that reason, that obligation should apply to transfers of non-performing credit agreements only and should not encompass complex transactions where non-performing credit agreements are included as a part of such a transaction. Credit institutions should not use such templates in the case of complex transactions, when selling or transferring other types of contracts, including credit default swaps, total return swaps and other derivative contracts, insurance contracts and sub-participation contracts in relation to non-performing credit agreements, or for transfers of non-performing credit agreements pursuant to such contracts.

(4)For the same reason, credit institutions should not use the transaction data templates for credit agreements, nor for sales or transfers of transferable securities, derivatives, or other financial instruments that fall under the scope of Directive 2014/65/EU of the European Parliament and of the Council^note, securities financing transactions, other than margin lending transactions, as defined in Article 3, point (10), of Regulation (EU) 2015/2365 of the European Parliament and of the Council^note, nor for financial or other leases of movable or immovable property that are not covered by Directive 2008/48/EC of the European Parliament and of the Council^note, and neither for sales or transfers of rights under such instruments, transactions or leases.

(5)In order to minimise processing costs for credit institutions and credit purchasers, as stated in Article 16(4), point (d), of Directive (EU) 2021/2167 , credit institutions should not use the transaction data templates for the disposals of non-performing credit agreements through securitisation, where Regulation (EU) 2017/2402 of the European Parliament and of the Council^note applies and the provision of the related information is governed by Commission Delegated Regulation (EU) 2020/1224^note and Commission Implementing Regulation (EU) 2020/1225^note.

(6)For the same reason, credit institutions should not use the transaction data templates for non-performing loans when selling such loans as part of sales of branches, sales of business lines or sales of clients’ portfolios which are not limited to non-performing loans, and transfers of such loans as part of an ongoing restructuring operation of the selling credit institution within insolvency, resolution, or liquidation proceedings.

(7)In order to respect the principle of proportionality, the transaction data templates for non-performing credit agreements should require different information depending on the nature and size of the non-performing credit agreements and should specify the data fields that have to be completed or specify the circumstances under which it is not mandatory to complete certain data fields. For the same reason, credit institutions should not be obliged to complete all data fields in the transaction data templates for all transactions. Such transactions should involve the sale or transfer of: (1) a single non-performing credit agreement; (2) several non-performing credit agreements linked to one single borrower; (3) non-performing credit agreements that are part of syndicated credit agreement facilities; (4) non-performing credit agreements linked to a borrower that is domiciled outside of the Union; (5) non-performing credit agreements that have been acquired from an entity that is not a credit institution, as in such situations credit institutions may not have all the information required to complete all data fields; (6) non-performing credit agreements to natural persons, where those transactions concern small unsecured credit agreements that are outside the scope of Directive 2008/48/EC. The same approach should apply in the case of a sale or transfer of non-performing credit agreements between credit institutions that belong to the same group.

(8)To enable prospective buyers of non-performing credit agreements to perform their financial due diligence and to value non-performing credit agreements before entering into a buy-sell transaction and before committing to a specific price, credit institutions should provide such prospective buyers with all necessary information early enough in the sale process. However, considering the level of detail of such information and the associated confidentiality implications, credit institutions should provide such information only to those prospective buyers that are seriously interested in purchasing the non-performing credit agreements concerned. For data protection reasons, credit institutions should only be allowed to provide personal data in cases where it is necessary to identify individuals whose credit agreements are non-performing. Regulation (EU) 2016/679 of the European Parliament and of the Council^note applies to the processing of personal data in the context of this implementing Regulation.

(9)Information that prospective buyers of non-performing credit agreements need to perform their financial due diligence and valuation of those credit agreements may contain elements that the credit institutions consider confidential on the basis of legal confidentiality requirements, or on the basis of commercial considerations. Credit institutions should therefore determine which data fields are to be considered confidential and should ensure that all confidential information is shared through secure channels and only after appropriate confidentiality arrangements have been put in place between the credit institution and the prospective buyer. Such secure channels may be electronic virtual data rooms set up by the credit institutions to grant access to the prospective buyers to the necessary information. Credit institutions should ensure that such virtual data rooms meet the applicable industry standards for confidentiality and data security.

(10)To facilitate the exchange of information, credit institutions should provide the information in electronic and machine-readable form, unless credit institutions and prospective buyers agree otherwise. Where credit institutions use electronic auction platforms or electronic transaction platforms to organise the sales or transfer process of non-performing credit agreements, specific requirements for the electronic and machine-readable format may be set out by such platforms.

(11)As part of the negotiation of the sales or transfer transaction, credit institutions may agree with prospective buyers to provide additional information regarding non-performing credit agreements beyond what is required by data templates. To that end, the design of the templates should allow for the provision of such additional data fields. Such additional information should as a rule not contain additional personal data, in line with the principle of data minimisation and data protection by design and by default.

(12)This Regulation is based on the draft implementing technical standards submitted to the Commission by the European Banking Authority. The European Banking Authority has conducted open public consultations on the draft implementing technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the opinion of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council^note.

(13)The European Data Protection Supervisor was consulted on this Implementation Regulation in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council^note and delivered an opinion on 25 July 2023,

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Defined terms · 4

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buyer
means a credit purchaser, or a credit institution that receives a non-performing credit agreement in a transaction with another credit institution;
counterparty
means either a borrower or a protection provider in relation to the non-performing credit agreement being sold or transferred;
cut-off date
means the reference date for the provision of information by credit institutions;
protection provider
means protection provider as defined in Article 1, point (13), of Regulation (EU) 2016/867 of the European Central Bank;

Commission Implementing Regulation (EU) 2023/2083

Defined terms · 4

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