Explanatory Memorandum to COM(2012)350 - Amendment of Directive 2009/65/EC on the coordination of rules relating to undertakings for collective investment in transferable securities (UCITS) as regards depositary functions, remuneration policies and sanctions - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)350 - Amendment of Directive 2009/65/EC on the coordination of rules relating to undertakings for collective investment in ... |
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| source | COM(2012)350  |
| date | 03-07-2012 |
Since the UCITS Directive was adopted in 1985, the rules relating to depositaries in the Directive have remained unchanged: they consist of a number of generic principles setting out the duties of depositaries. The principal UCITS rule is that all assets of a UCITS fund must be entrusted to a depositary. This depositary shall, in accordance with national law, be liable for losses suffered as a result of a failure to perform its duties. The UCITS Directive, apart from employing a negligence-based standard, makes reference to national laws in respect of the precise contours of these duties. This reference leaves considerable scope for diverging interpretations regarding the scope of a depositary's duties and the liability for the negligent performance thereof. As a result, different approaches have developed across the European Union, leading to UCITS investors facing uneven levels of protection in different jurisdictions.
The potential consequences of national divergences in the liability standard came to the fore following the Lehman bankruptcy[1] and the Madoff fraud. In particular, the consequences of the Madoff fraud have been particularly acute in some EU Member States. In one instance, a particular fund that acted as a feeder fund for Madoff lost around € 1.4 billion. The large scale of the Madoff fraud essentially went undetected for a long period because the depositary had delegated custody of the assets to an entity run by Bernard Madoff, the US broker 'Bernard Madoff Investment Securities'. At the same time, Bernard Madoff was also the manager and broker responsible for purchasing financial instruments on behalf of the fund. The Madoff case raised several important issues in relation to UCITS funds. First, it raises the question of the precise conditions under which a depositary acting on behalf of a UCITS fund can delegate safekeeping of assets to a sub-custodian? The current UCITS Directive is silent on the precise conditions under which custody may be delegated.
The Madoff case also raises the issue of conflicts of interest. More particularly, to what extent should the manager of an investment fund be allowed to belong to the same corporate group as the sub-custodian to whom custody has been delegated? Can it really be expected that a fund manager will always behave in a manner conducive to protecting the interests of a fund's investors where the manager is also the sub-custodian of the assets they invest in? In respect of conflicts of interests that may arise in relation to the independence of the depositary, the UCITS Directive is limited to stipulating the general principle that a company cannot manage a UCITS fund and also act as its depositary. The UCITS Directive contains no rule to cover the conflicts of interest that may arise in case the management function and the depositary functions are delegated to one and the same third party.
Finally, the Madoff case has also revealed general uncertainties within the UCITS framework, especially in relation to the principal custodian's liability in case of delegation of custody to a sub-custodian. The issue of liability in case of delegation, in the absence of hard and fast rules in the relevant UCITS Directive, is dealt with differently in individual Member States.
The Madoff case brought to the fore an essential development in the UCITS sphere: while the UCITS provisions on depositaries have remained unchanged, the investment environment for UCITS has evolved. UCITS are now able to invest in a wider range of financial assets, which may be more complex and also may be issued and held in custody outside the EU (for instance, in emerging markets); fund portfolios are increasingly diverse and international.
As a consequence, holding assets through sub-custody arrangements, so as to match the fund's investment strategies, have become increasingly common. The Madoff fraud has shown that the risks associated with the use of delegated sub-custody networks are not always negligible. Assets can be lost at the level of the sub-custodian, which might include loss through fraud committed by the sub-custodian, negligence of the sub-custodian or the bankruptcy of the sub-custodian. Under the current UCITS framework, it is unclear what duties a depositary has in the selection and the oversight of the sub-custodian. As a result, there is a legal uncertainty to what extent a depositary is liable for losses at sub-custodian level.
It must be noted that on 12 July 2010 the Commission proposed the extension of investor compensation schemes to cover investors in UCITS. The amendments to Directive 97/9/EC aimed to cover situations where a depositary is liable for the loss of assets of UCITS but is not able to cover its liabilities. This should serve as an additional means to increase the protection for investors in UCITS. However, at this stage this proposal has not been accepted by the Council and is subject to further negotiations.
In addition, the financial crisis also revealed that the remuneration and incentive schemes commonly applied within financial institutions were themselves exacerbating the impact and scale of the crisis. Remuneration policies contributed to short-term decision making and created incentives for taking excessive risk.
Finally, the analysis of national sanctioning regimes carried out by the Commission, along with the Committees of Supervisors (now transformed into European Supervisory Authorities) has shown a number of divergences and weaknesses which may have a negative impact on the proper application of EU legislation, the effectiveness of financial supervision, and ultimately on competition, stability and integrity of financial markets and consumer protection. Therefore, in its Communication of 9 December 2010 'Reinforcing sanctioning regimes in the financial sector'[2] the Commission suggested setting EU minimum common standards on certain key issues, in order to promote convergence and reinforcement of national sanctioning regimes. The Commission has included such common rules, adapted to the specifics of the sectors concerned, in all its recent proposals for the review of the sectoral EU legislation concerned (CRD IV, MiFID, Market Abuse Directive, Transparency Directive). Extending this work to the UCITS framework is a natural additional step in this process.
This proposal forms part of a wider legislative package dedicated to rebuilding consumer trust in financial markets. The package has two other parts. The first is an extensive overhaul of the Insurance Mediation Directive 2002/92/EC to ensure that customers benefit from a high level of protection when buying insurance products. The final part of the package aims at improving transparency in the investment market for retail investors (a proposal for a Regulation on key information documents for investment products).
On 3 July 2009 the Commission launched a consultation on UCITS depositaries. This was followed by a feed-back statement in November of the same year.[3] The results of the consultation, supplemented by the technical input from ESMA, are duly reflected in the impact assessment report.
On 9 December 2010, the Commission services launched a second public consultation on the UCITS depositary function and on managers' remuneration, which closed on 31 January, 2011. In total, 58 contributions were received most of which signalled a broad support of the review initiative, particularly with respect to the clarification of depositary functions and to the simplification of the regulatory landscape as a result of the proposed alignment with the AIFM Directive.[4] Respondents however took a more critical stance vis-à-vis the issue of depositary liability.[5] The feed-back statements to both consultations are available in Annex 2 of that impact assessment.
As to the issue of administrative sanctions, this report reflects replies to an ad hoc questionnaire prepared by the Commission services and sent to the European Securities Committee (ESC), as well as to ESMA. A summary of the Member State replies to the questionnaire is presented as Annex 7 to the Impact Assessment.
The impact assessment focused on five issues: eligibility to act as a depositary, criteria for delegating custody, liability for the loss of financial instruments held in custody, remunerations of UCITS managers and sanctions for breaches of the UCITS rules.
The current UCITS framework provides little clarity on the institutions that are eligible to act as a depositary for a UCITS fund. According to Article 23(3) UCITS Member States enjoy significant discretion as to the institutions they deem eligible to act as UCITS depositaries, provided that the institutions comply with the requirements of Article 23 (2) (i.e. they are subject to prudential regulation and on-going supervision).
This has led to divergent approaches across Member States: out of the 17 Member States that require depositaries to be credit institutions, 12 impose specific capital requirements just for carrying out custody activities or other related UCITS depositary functions. In those Member States that allow entities other than credit institutions to act as a UCITS depositary, only 3 require depositaries to fulfil additional capital requirements.
National divergences as to the entities that can act as depositaries for a UCITS fund may be at the origin of significant legal uncertainty and could lead to differential levels of investor protection. Furthermore, allowing entities that are not either credit institutions or investment firms to act as depositaries without applying minimum capital requirements entails considerable risk in relation to the resources available to these entities.
Three options emerged for harmonising the scope of institutions that are deemed to provide sufficient guarantees in terms of prudential regulation and capital requirements to fulfil the task of being a depositary. The impact assessment concludes that both credit institutions and regulated investment firms provide sufficient guarantees in terms of prudential regulation, capital requirements and effective supervision to act as UCITS depositaries. Other institutions (such as, e.g., law firms, notaries) are not deemed to provide these guarantees and would have, if they wished to act as UCITS depositaries, to transform themselves into regulated investment firms. As most UCITS depositaries are already credit institutions or regulated investment firms, the impact of the chosen option would thus only concern a small minority of unlicensed service providers. Notaries and law firms would, obviously, be allowed to continue to act in their traditional field as depositaries for non-UCITS funds, such as small venture capital and private equity funds that rarely invest in listed securities.
Changes to the UCITS directive introduced in 2001 extended the scope of eligible assets for UCITS to new classes of assets.[6] As a result, UCITS managers now invest in a much greater number of countries and in more complex instruments than in 1985. As more investment opportunities arise in different third country jurisdictions, the necessity to appoint sub-custodians in these jurisdictions increases.
Despite the enlargement of eligible investment instruments, the UCITS Directive does not define the conditions applicable in case a depositary delegates custody to a sub-custodian. The lack of clarity pertains both to the conditions under which a delegation can take place (e.g., objective reason for delegation, level of skill in selecting sub-custodian, intensity of ongoing monitoring of sub-custodian) and to the conditions under which, exceptionally, custody might be delegated to third country custodians who do not meet prudential and supervisory standards.
The impact assessment concludes that the delegation of custody should be governed by rules on diligence in selecting an appointing a sub-custodian, and on the ongoing monitoring of the activities of the sub-custodian. For the rare case in which a UCITS' investment strategy would involve investing in financial instruments issued in countries that require mandatory local custody and where no custodian operates that could comply with the above delegation requirements and prudential standards, delegation should nevertheless be allowed so long as strict circumstances are fulfilled.
According to Article 24 of UCITS Directive, liability for loss of a financial instrument that is held in custody only arises in case of unjustifiable failure to perform obligations or improper performance of these duties. These legal terms have given rise to different interpretations in Member States and thus differences in investor protection. Some Member States apply a so-called strict liability regime, where the depositary has an immediate obligation to return the lost asset to the UCITS, while others take the view that the loss of assets does not always imply an unjustifiable failure to perform its duties on the part of the depositary that should lead to liability for that depositary. As a consequence, the liability standard is not the same in all Member States.
The issue of liability is most relevant where custody is delegated. According to Article 22(2), the depositary's liability 'shall not be affected by the fact that it has entrusted to a third party all or some of the assets in its safe-keeping'. The UCITS Directive contains no further provisions governing liability for the loss of a financial instrument where custody has been delegated to a third party. This issue is left to the general principle expressed in Article 22(2), which gives a wide margin of interpretation to Member States. For instance, some Member States only impose an obligation to monitor the sub-custodian which means that the depositary will not be held liable in case of loss if it shows it has performed its monitoring duty correctly (a negligence-based standard). By contrast, other Members States impose an obligation to return the assets irrespective of whether a monitoring duty was breached. The Madoff case demonstrated the fundamental difference between strict liability and negligence standards.
The impact assessment concludes that a strict liability standard obliging depositaries to return instruments lost in custody irrespective of fault or negligence is both conducive to ensuring a high level of investor protection and to achieving a uniform standard across the EU. In line with the needs of retail investors, liability in case of the loss of an instrument held in custody should be based on a uniform EU standard that entails a strict liability for returning lost instruments at the cost of the principal custodian, without any option for the principal custodian to discharge liability in case of delegated custody.
Given that the remuneration of UCITS managers is, at least partly, based on the performance of the fund, there is an incentive to increase the level of risk in a fund's portfolio in order to increase potential returns. However, the higher level of risk exposes the fund investors to higher potential losses than might be expected given the disclosed risk profile of the fund. Remuneration structures might be skewed so that managers participate in materialized returns but do not participate in materialized losses, creating further incentives to take on higher risk strategies. Furthermore, remuneration structures are seldom disclosed in the fund's offering documents, rendering managers largely unaccountable to investors as far as the determinants of executive pay in line with fund performance are concerned.
It is envisaged to introduce a requirement for the UCITS management company to implement remuneration policy that is consistent with sound risk management of the UCITS fund and complies with minimum remuneration principles. The UCITS management company would also be required to disclose the amount of remuneration for the financial year with appropriate detail in the annual report of the UCITS fund.
The analysis of national rules on sanctions for breaches of the obligations of the UCITS Directive carried out by the Commission has revealed three salient features: (i) differences in the amounts of pecuniary sanctions (i.e. fines) applied to the same categories of breaches; (ii) different criteria were applicable to determining the amount of administrative sanctions; and (iii) variations in the level of the use of sanctions.
The policy choice is to achieve minimum harmonization of the sanctioning regimes by requiring (i) a minimum catalogue of administrative sanctions and measures (including harmonization of the lower bound of the maximum amounts of administrative fines), (ii) a minimum list of sanctioning criteria, and (iii) competent authorities and management companies to establish whistle-blowing mechanisms. This sanctioning regime would apply to a catalogue of breaches of main investor protection safeguards in the UCITS Directive.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- Budgetary implication
- 1.1. General
- 1.2. Results of consultations with the interested parties and impact assessment
- 1.2.1. Consultation with interested parties
- 1.2.2. Impact assessment
- Eligibility to act as a depositary
- Delegation of custody
- Liability
- Remuneration
- Sanctions
- 2.2. Rules on delegation
- 2.3. Rules on eligibility to act as a UCITS custodian
- 2.4. Rules on liability
- 2.5. Redress
- 2.6. Remuneration
- 2.7. Access to telephone and data records
- 2.8. Sanctions and measures
2.1. Rules on depositaries’ duties
In relation to the depositary's core safekeeping and oversight duties, the draft proposes to amend Article 22 UCITS in the following manner:
Article 22(1) specifies that a single depositary shall be appointed for each UCITS fund. This rule intends to ensure that one fund cannot have several depositaries.
Article 22(2) proposes to specify that the appointment of a depositary shall be evidenced by written contract.
Article 22(3) makes uniform a list of oversight duties of depositaries of UCITS established in a contractual form and UCITS established in a corporate form. These duties involve verifying compliance with applicable rules when UCITS shares are sold, issued, re-purchased, redeemed and cancelled; verifying that any consideration is remitted to it within the usual time limits; verifying that the investment company's income is applied in accordance with the law and its instruments of incorporation, ensuring that the value of units in a UCITS is calculated in accordance with the applicable national law and the fund rules; and carrying out instructions of the management or investment company.
Article 22 i contains detailed provisions on cash monitoring. This paragraph intends to equip the depositary with a view over all the assets of the UCITS, cash included. This paragraph also ensures that no cash account associated with the funds' transactions shall be opened without the depositary's knowledge. The aim is to avoid the possibility of fraudulent cash transfers. This paragraph also introduces a segregation requirement, so that any financial instruments on the depositary's book held for a UCITS can be distinguished from the depositary's own assets and can at all times be identified as belonging to that UCITS; such a requirement aims to confer an additional layer of protection for investors should the depositary default.
Article 22(5) introduces a distinction between (1) custody duties relating to financial instruments that can be held in custody by the depositary and (2) verification of the ownership duties relating to the remaining types of assets. A reference to the custody of physical assets, such as real estate or commodities, is not necessary because such assets are currently not eligible to be held in a UCITS portfolio.
New Article 25(2) contains a series of customary provisions on conduct, the avoidance of and the management of conflicts of interest.
In this context, Article 26b introduces new implementing measures defining detailed conditions for performing depositary monitoring and custody functions, including (i) the type of financial instruments that shall be included in the scope of the depositary's custody duties; (ii) the conditions under which the depositary may exercise its custody duties over financial instruments registered with a central securities depositary; and (iii) the conditions under which the depositary shall monitor financial instruments issued in a nominative form and registered with an issuer or a registrar.
Article 22(7) defines the conditions in which the depositary’s safekeeping duties can be delegated to a sub-custodian. Essentially, the conditions and requirements upon which a UCITS depositary may entrust its safekeeping duties to a third party are aligned with those applicable under the AIFM Directive.
Article 26b delegates to the Commission the power to adopt delegated acts that will further define the depositary's initial and on-going due diligence duties, including those that apply to the selection and appointment of a sub-custodian.
In light of the different national eligibility criteria that currently apply to the activities of depositaries, the draft proposes to modify Article 23(2) setting out an exhaustive list of entities that are eligible to act as depositaries. The policy choice is to only allow credit institutions and investment firms to act as UCITS depositaries. Article 23 contains transitional provisions for UCITS that appointed entities that are no longer able to act as depositaries.
Article 24(1) aims to clarify the UCITS depositary's liability in case of the loss of a financial instrument that is held in custody. According to this paragraph, the UCITS depositary, in case a financial instrument held in custody is lost, shall be under the obligation to return a financial instrument of the identical type or of the corresponding amount to the UCITS. No further discharge of liability in case of loss of assets is envisaged, except in case the depositary can prove that the loss is due to an external event beyond its reasonable control. Moreover, it is made clear that, in case of assets that are lost, the UCITS depositary has the general obligation to return the financial instruments of the identical type or of the corresponding amount to the UCITS ‘without undue delay’.
Article 26b provides for corresponding implementing measures to clarify certain technical aspects, for example to specify circumstances under which an instrument held in custody may be considered as lost.
Article 24(2) contains the rule according to which the depositary's liability is not affected by the fact that it has entrusted to a third party all or some of its custody tasks. As a result, the depositary is obliged to return instruments held in custody that are lost, even if the loss occurred with the sub-custodian. As mentioned above, no further discharge of liability (either regulatory or contractual) in case of loss of assets by a sub custodian shall be envisaged.
Article 24(2), in contrast to Article 21(12) AIFMD, therefore holds the depositary liable for the return of the instrument, also in case of delegation, without the possibility to discharge liability by contract. This strengthening of the liability in case of delegation of custody appears justified in light of the very large investors base and the retail nature of UCITS holders. Introducing a regime with the same contractual possibility for the depositary to be discharged of its liability as it is allowed under AIFM Directive, is not considered to be entirely appropriate. To a similar extent, envisaging that the liability of the depositary could be discharged where assets are transferred to a sub-custodian that does not comply with delegation criteria would also not be appropriate.
Article 24(5) concerns redress against the depositary. This paragraph aligns the rights of investors in both corporate and contractual UCITS so that they are able to invoke claims relating to the liabilities of depositaries, either directly or indirectly (through the management company), depending on the legal nature of the relationship between the depositary, the management company and the unit-holders.
The proposed Articles 14a and 14b reflect current policy on remuneration of senior management, risk takers and those who exercise control functions. These principles should also apply to those that manage a UCITS fund, be it managed in the form of an investment company or in the form of a management company.
Existing telephone and data traffic records constitute important evidence to detect and prove a breach of the provisions of the UCITS Directive. Therefore, Article 98 is modified in order to ensure that competent authorities should be able to require existing telephone and existing data traffic records held by a telecommunication operator or by a UCITS, a management company, an investment company or a depositary, where a reasonable suspicion exists that such records related to the subject-matter of the inspection may be relevant to prove a breach of the provisions of the UCITS Directive. It should also be clear that these records shall however not concern the content of the communication to which they relate.
Articles 99a to 99e reflect current horizontal policies in the financial service sector concerning sanctions and measures. They define a common approach to the main breaches of the UCITS Directive. Article 99a sets out a list of the main breaches. It also lays down the administrative sanctions and measures that the competent authorities should be empowered to apply in case of the main breaches.
There are no implications for the EU budget in that no additional funding and no additional posts will be required to perform these tasks. The tasks envisaged for the European Securities and Markets Authority fall within the scope of existing responsibilities for this Authority, therefore the allocation of resources and staff foreseen in the approved Legislative Financial Statements for this Authority will be sufficient to facilitate the execution of these tasks.