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Plan to harmonise national rules on UCITS depositaries

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The European Commission would like to reduce the divergences that exist between the national rules governing depositaries entrusted with the safe keeping of assets on behalf on investors in undertakings for collective investment in transferable securities (UCITS) * such as unit trusts, common funds and SICAVs. By following a step-by-step approach, the Commission, in cooperation with the national regulators, intends to facilitate the cross-border activity of such UCITS. There are four main areas of action: prevention of conflicts of interest, clarification of the depositary's liability, convergence of national prudential rules, and moves to enhance invstor transparency and information. UCITS are established in all Member States and their assets total some four thousand billion euros.

ACT

Commission Communication to the Council and the European Parliament of 30 March 2004 on "Regulation of UCITS depositaries in the Member States: review and possible developments" [COM(2004) 207 final - Not published in the Official Journal].

SUMMARY

In response to the conclusions of the Economic and Financial Affairs Council in June 2001 calling on it to prepare a report on the regulation of UCITS * depositaries and on the need to amend such regulation, the Commission is examining the existing legal framework. It notes that there are significant differences between Member States as regards, for example, minimum capital requirements, statutory and regulatory obligations, and the liability regimes for depositaries.

If cross-border activity is to expand, these rules must be harmonised. Fund managers and supervisory authorities will want to know exactly the resources and liabilities of depositaries established in other Member States before they are authorised to do business. In addition, investors will need to be better informed.

Favouring a step-by-step approach, the Commission is planning to entrust to regulatory experts in the European Union (EU) four areas of work for the period 2004-06: to promote better prevention of conflicts of interest; to clarify the extent of the depositary's liability; to promote convergence of prudential requirements, notably those relating to capital and to the taking-up and exercise of the function of depositary; to tighten the standards on investor transparency and information.

The Commission states that a chapter on depositaries will initially be attached to its overall UCITS report under Directive 2001/108/EC in 2005. This chapter will specify to what extent EU legislation on the relationship between fund manager and depositary will have to be strengthened and what degree of harmonisation is needed as regards the typology of eligible depositary institutions and, consequently, their missions and resource requirements. A subsequent report reviewing progress is to be adopted in 2006. It will also evaluate whether is a need to legislate at Community level in order to create a fully-fledged European passport for expanding the cross-border activity of depositaries.

Better prevention of conflicts of interest

Conflicts of interest arise when the interests of investors are not the prime concern of the depositary or fund manager. The Commission is proposing measures to strengthen convergence of the relevant national rules. Such convergence will relate notably to the list of the functions that the fund manager can delegate to the depositary and, conversely, the list of the functions that the depositary may delegate.

Clarification of the extent of the depositary's liability

The differences in the level and extent of the depositary's liability are a major obstacle if there is to be a high level of investor protection throughout the EU and if the scope for depositaries to engage in cross-border activities is to be expanded. The Commission thus regards it as essential that there should be a common reading of the main task of the depositary, namely asset safe keeping, and of the specific control duties assigned to the depositary.

Convergence of prudential requirements

The prudential rules governing the taking-up and pursuit of the activity of depositary differ significantly between Member States as there is no common European definition of eligible institutions. The Commission is proposing to align these rules more closely, particularly those relating to capital requirements, by identifying a specific group of institutions subject to prudential supervision.

Enhancement of transparency and investor information

The Commission identifies the areas where public information standards should be strengthened: organisation of the depositary's tasks, measures to prevent conflicts of interest, the depositary's liability and all the costs connected to his services.

Background

This communication is in response to the remit assigned to the Commission in June 2001 by he Economic and Financial Affairs Council. The approach it advocates is based on an extensive survey and on an Internet consultation in the autumn of 2002 concerning the different national rules impeding the development of the internal market in the case of UCITS depositaries. The survey identified major disparities between national rules that help to explain the current fragmentation of the market (in virtually 95% of cases UCITS depositaries are national institutions). The internet consultation revealed significant differences in connection, for example, with minimum capital requirements, statutory obligations and the extent of the depositary's liability. For there to be a genuine internal market in depositaries' services, these rules need to be brought into line.

Alongside the fund and its manager, the UCITS depositary is the third pillar of the European UCITS system set up by Directive 85/611/EEC.
In 2001 the EU adopted two other UCITS Directives amending Directive 85/611/EEC (one focuses on the instruments in which funds may invest and the other on management companies, thereby setting in place a "European passport" scheme).

Key terms used in the act
  • UCITS: Depending on the jurisdiction, UCITS can be constituted either under the law of contract (as common funds) or trust law (as trusts) and also under statute, i.e. in corporate form (as investment companies). The Directive may refer to both non-corporate forms under one designation, e.g. as common funds or unit trusts. Importantly, some Member States' legal frameworks are limited to common funds, i.e. all their UCITS are without legal personality and depend on a designated external fund manager (a management company).
  • UCITS depositary: Directive 85/611/EEC (as amended) defines it simply as an entity entrusted with specific prudential missions and subject to a number of other general provisions. The UK regulatory designation is twofold, according to whether these missions have to be achieved with regard to unit trusts (by a "trustee") or with regard to an investment company (by a "depositary"). However, for the reader's convenience, only the term "depositary" has been used in this communication.
    It should also be noted that the specific regulatory meaning of the designation "UCITS depositary" is precisely based on the peculiar nature of these missions and obligations and, more generally, of the provisions drawn up under UCITS national regulation from Community law. The scope of the concept of "safekeeping" of assets, to which it is particularly related, has thus to be considered in this specific context.
  • UCITS fund manager: This may be either a "management company" or a "self-managed investment company". Unlike common funds or unit trusts, corporate UCITS, i.e. investment companies, may bring together a vehicle (the fund) and a fund management capacity into the same entity. Directive 2001/107/EC defines them as "investment companies which have not designated a management company" in their instruments of incorporation, i.e. self-managed investment companies. In this Communication, most of the remarks concerning the "fund manager" or "management company" should also be deemed to apply to self-managed investment companies, except that these may not receive any task under a delegation mandate, e.g. from the depositary.
Last updated: 08.06.2004
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