Funds subject to part II of the law of 17 December 2010 on undertakings for collective investment (Part II-Funds respectively the 2010 Law) always qualify as alternative investment funds (AIF) as per the law of 12 July 2013 on managers of alternative investment funds (the 2013 Law)1.
As of to date, the minimum requirements applicable to depositaries of Part II-Funds are identical to those of UCITS funds subject to part I of the 2010 Law.2 Depositaries were able to delegate their safe-keeping functions to a third party but could not discharge themselves of their liability on the basis that the third party is not be subject to efficient supervision etc.3
On 1 March 2018, a law was published (the 2018 Law)4, which modifies various laws, inter alia the 2010 Law. The change of the 2010 Law applies without transitional provision and it results in a more differentiated and more flexible regulation of the minimum requirements applicable to depositaries of Part II-Funds. The 2010 Law now distinguishes the following:
2) Part II-Funds which exclude the marketing to retail investors in their prospectus and which are managed by an authorized AIFM: the depositary obligations can now be aligned to the AIFMD, article 19 of the 2013 Law and the Commission Delegated Regulation (EU) 231/2013.
3) Part II-Funds which exclude the marketing to retail investors in their prospectus and which are merely managed by a registered/de-minimis AIFM: the depositary obligations of the law of 13 February 2007 on specialised investment funds can now be chosen.
Part II-Funds may hence now chose to exclude retail investors, amend their fund documents and depositary agreement accordingly and provide for the relevant discharge of liability in accordance with applicable law.