On 23 July 2014, the Council adopted a Directive (“UCITS V”), which amends the Undertakings for Collective Investment in Transferable Securities (“UCITS”) Directive. UCITS V has been drafted to harmonize the approach to depositaries’ liabilities (which, under the previous UCITS Directive, varied between member states) by introducing a uniform set of oversight duties which apply regardless of the legal form the UCITS takes. The provisions relating to depositaries are intended to bring the UCITS regime in line with the Alternative Investment Fund Managers Directive, which already imposes similar depositary-related requirements in relation to alternative investment funds.
Under UCITS V, a depositary will have more onerous obligations for custody, including segregation of assets. The new Directive makes it clear that each UCITS may only appoint a single depositary and includes administrative sanctions for any infringement, allowing member states to impose administrative and criminal sanctions for the same infringements.
The Directive also adds the express obligation for UCITS managers to establish and maintain remuneration policies which encourage sound and effective risk management for staff “whose professional activities have a material impact on the risk profiles of the UCITS they manage.” These policies should also apply (in a proportionate manner) to any third parties to which the UCITS has delegated investment decisions which influence the funds risk profile.
Although UCITS V has been adopted, it will only enter into force after publication in the Official Journal of the EU. Member states have 18 months from that publication to transpose the Directive into national law and depositaries have a further 24 months after the transposition deadline to comply with the new requirements.
The Council press release is available at: