Structured products and securitisation

This subtopic contains the following guidance on EU-level rules relating to structured products and securitisation:

  1. Practice Note: EU regulation of structured products and securitisation—one minute guide provides a guide to EU regulation of structured products (investment products containing a combination of two or more disparate elements, for example debt securities and derivatives) and securitisations and covers regulations governing debt securities generally, regulations governing derivatives generally, and regulations with specific relevance to structured products: (1) Directive 2014/65/EU (EU MiFID II), (2) Regulation (EU) 600/2014 (EU MiFIR), (3) Regulation (EU) 1286/2014 (the EU Packaged Retail and Insurance-based Investment Products (EU PRIIPs) Regulation), (4) Directive 2009/138/EC (Solvency II (regulation of Insurance Linked Securities)), (5) Regulation (EU) 2017/2402 (the EU Securitisation Regulation) and (6) and Regulation (EU) 575/2013 (the EU Covered Bonds Directive and Regulation)

  2. Practice Note: Collateralised debt obligations—EU explains the treatment of collateralised debt obligations (CDOs) under EU law and covers: (1) core concepts relevant to CDOs including special purpose vehicles (SPVs), securitisation, tranches and the creation of security over a portfolio of financial assets which may include asset backed securities (ABS), mortgage-backed securities

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Automated decision-making and DSARs: right to access means a right to explainability (CK v Magistrat Der Stadt Wiendun & Bradstreet Austria GMBH)

Information Law analysis: The Court of Justice provided several clarifications around the scope of data subject access requests (DSARs) in the context of automated decision-making. The court held the determining factor for whether information constitutes ‘meaningful information about the logic involved’ under Article 15(1)(h) of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) is whether the information enables the data subject to understand the logic involved in automated decision-making involving their personal data. The court also held disclosure by controllers should be underpinned by the principles of transparency, which requires information to be clear, accessible and intelligible, both in terms of content and form, from the perspective of data subjects. In the context of automated decision-making this doesn’t necessarily mean providing the exact algorithm, if it doesn’t help the data subject’s understanding of the ‘how’. The court confirmed DSARs do not mandate the disclosure of trade secrets, but this can only be decided by the relevant supervisory authority or competent court, after assessing all relevant information provided to them by a controller. The protection of trade secrets cannot be used as a blanket excuse by businesses to withhold certain information from individuals making a request under Article 15(1)(h) of the EU GDPR. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

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