OPINION OF THE EUROPEAN CENTRAL BANK (EBC).
On 19 September
2012, the European Central Bank (ECB) received a request from the
European Parliament for an opinion on a proposal for a directive of
the European Parliament and of the Council amending Directive
2009/65/EC on the coordination of laws, regulations and
administrative provisions relating to undertakings for collective
investment in transferable securities (UCITS) as regards depositary
functions, remuneration policies and sanctions.
The ECB broadly
welcomes the proposed directive. However, it makes the
following observations:
- Reuse of assets
by a UCITS depositary : the ECB considers that the
proposed directive should explicitly prohibit a UCITS depositary or
any party to whom the custody of a UCITS fund has been delegated
from reusing the assets under its management for its own
account.
-
Delegation : the proposed directive allows a
depositary’s safekeeping duties to be delegated to a
sub-custodian under certain conditions. In this respect, the ECB
considers that protection of retail investors requires more
stringent rules for UCITS depositaries than for depositaries
appointed by alternative investment funds managers. In particular,
the delegation by a UCITS depositary to a sub-custodian located
outside the European Union should be subject in all cases to
appropriate safeguards, such as minimum capital requirements and
effective supervision in the country concerned.
- Eligibility to
act as a UCITS custodian : the ECB supports the
introduction of eligibility conditions according to which only
credit institutions and investment firms may act as UCITS
depositaries. Moreover, it should be further assessed whether the
proposed regime for capital requirements for credit institutions
and investment firms provides for adequate safeguards in relation
to the exercise of the UCITS depositary functions.
-
Liability : the ECB considers that the ‘external
events beyond reasonable control’ which trigger the
possibility for a depositary to discharge liability by contract
should be specified in the Commission delegated acts in a detailed
manner.