On October 30, 2018, amending Delegated Regulations on the safe-keeping duties of depositaries, supplementing the AIFMD and the Undertakings for Collective Investment in Transferable Securities Directive, were published in the Official Journal of the European Union.
The amending Delegated Regulations were adopted by the European Commission in July 2018. They amend existing delegated regulations under AIFMD and UCITS relating to the safekeeping of AIF and UCITS clients' assets respectively, to ensure a more uniform approach is adopted across the EU. The amendments clarify that where a depositary for an AIF or UCITS delegates safe-keeping functions to a third party custodian, the clients' assets must be segregated at the level of the delegate (i.e., from the delegate's own assets but not from those of its other clients). This should prevent interpretation of the segregation obligations as requiring separate accounts per depositary and per type of fund at each level of the custody chain. The respective Delegated Regulations set out how that obligation should be fulfilled to ensure a clear identification of assets belonging to a particular AIF or UCITS and the protection of assets in the event of the depositary or custodian entering insolvency.
The amending Delegated Regulations enter into force on November 19, 2018 and will apply directly across the EU from April 1, 2020.
The amending Delegated Regulation under AIFMD ((EU) 2018/1618) is available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1618&from=EN and the amending Delegated Regulation under UCITS ((EU) 2018/1619) is available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1619&from=EN.
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