06 July 2009

Commission consults on UCITS depositary function

The Commission requests comments on the depositary’s duties, the responsibility regime, organisational requirements and on the eligibility criteria and supervision. The outcome will serve as guidelines for potential future initiatives. 

 “It is not acceptable to have a less stringent regulation for retail investors than for professional investors” Commissioner McCreevy stated. ”UCITS requirements need to be harmonised and strengthened”, he said.

• Depositary’s duties: Clarification on the depositary safe-keeping duties for each class of assets that are eligible within a UCITS portfolio. Views on whether supervisory duties should also be further clarified and harmonised, and if so how to do so.
• Responsibility regime: The burden of proof should be borne by the depositor. Additional requirements where assets are entrusted for safe-keeping through a network of sub-custodians. The form of a liability regime which would allow investors to adequately mitigate losses.
• Organisational requirements: Views on the introduction of rules on organisation and conflict of interests based on existing rules MiFID Directive.
•  Eligibility criteria and supervision: According to the AIFM proposal depositories should be credit institutions based, authorised and supervised in the EU. The consultation asks whether a similar approach should be adopted for UCITS depositaries and how supervisory rules might be strengthened.

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