Il Cesr ha di recente risposto alla consultazione della Commissione Europea in merito alla UCITS depositary function.

Nella propria risposta, disponibile sul sito, la CESR “welcomes this consultation as it initiates a public debate and discussions on issues regarding divergent interpretations of the UCITS Directive provisions in relation to depositaries. As a starting point, CESR would like to emphasise that UCITS depositaries are a core element of European investment fund regulation. They provide an important element of investor protection which is not present in some other products in competition with UCITS for retail savings. CESR acknowledges that under the proposed Directive on Alternative Investment Fund Managers (AIFM), the liability of non-UCITS depositaries would be strengthened to include an inversion of the burden of proof and be more detailed. Commissioner McCreevy announced5 on 28 May 2009 that he ‘wants to extend such provisions to UCITS funds’. Apart from the issue of the inversion of the burden of proof, where there are mixed view among its Members. CESR would like to express disagreement with such an approach for the following reasons. The AIFM Directive proposal is a draft that is under discussion within the European Council and Parliament and, hence, may be amended. In particular, the draft provisions regarding depositaries do not seem consensual at present. Moreover CESR disagrees with the idea of extending the current draft AIFM provisions regarding depositaries to UCITS depositaries as these do not seem appropriate. CESR sets out below what it believes is an appropriate framework for UCITS depositaries. More generally, only two CESR Members suggest that the European investment fund legislation relating to depositaries should clearly distinguish between: - retail fund regulation that would encompass a strict liability regime for depositaries; and - rules for funds that are reserved for professional or sophisticated investors who are capable of carrying out due diligence. These rules would introduce an attenuated liability regime for depositaries, provided that the depositary/custody risk level is made clear to investors. However, a majority of CESR Members question whether such a distinction would be workable in practice and do not see grounds for differentiating the depositary liability regime according to the type of investor”.

Nel medesimo documento, inter alia, la Commissione evidenzia l’importanza della problematica, rilevando come: “In Europe, the requirement to entrust the UCITS’ assets to a depositary that is in charge of safekeeping is the basis for a high level of UCITS investor protection. Investors in UCITS are protected from the risk of default of the UCITS manager by the presence of a depositary in the value chain (should the manager default, the depositary which holds the UCITS assets could find another manager or call for an orderly liquidation of the UCITS fund). Finally, there is an additional level of protection from the risk of wrongdoing or fraud by the manager as the depositary is required to comply with the duties of Articles 22 and 32 of the modified UCITS Directive. The question arises as to what would happen if the depositary itself were to default. This risk is perceived as relatively low as UCITS depositaries are generally large financial institutions, and they are required to segregate the UCITS assets under their custody6 from their own assets. Should the depositary default, the UCITS assets would be identified as belonging to the UCITS and would not be seized by the defaulting depositary’s creditors. This system has worked well for almost 25 years in Europe. Then, the Madoff fraud occurred. It highlighted that some UCITS depositaries in Europe may have delegated the custody to a sub-custodian that was in fact an entity which belonged to the Madoff group. The Madoff fraud together with the Lehman default have revealed the existence of a depositary/custody risk for investors, despite the fact that UCITS depositaries are expected to be institutions which investors can trust to keep their savings safe. The debate and the legal proceedings arising from these episodes have also revealed divergent interpretations of the UCITS Directive. Some CESR Members consider that the depositary cannot be held liable if it can prove that it has correctly performed due diligence on the sub-custodian and correctly monitored its performance putting in place all the required controls. Other Members consider that, in such circumstances, the UCITS depositary remains, in any case, liable for the restitution of the assets even though it has delegated the custody to a third party. Because of this situation, investors in Europe and beyond may be losing the confidence they have traditionally placed in UCITS. There is a strong need to restore this confidence“.

La CESR ha, inoltre, di recente aperto una consultazione “on its technical advice to the European Commission on level 2 measures relating to mergers of UCITS, master-feeder UCITS structures and cross-border notification of UCITS”

Nel documento di consultazione, disponibile sul sito, la CESR sommarizza gli steps precedenti che hanno portato alla consultazione de qua:

1. In March 2007, the European Commission announced a series of targeted enhancements to the UCITS Directive (85/611/EC). Following further work and consultation, the Commission adopted a proposal for the revised UCITS Directive in July 2008, an amended version of which was approved by the European Parliament in January 2009 and adopted by the Council in June 2009. The final text of the revised Directive is expected to be published shortly in the Official Journal.

2. In the light of the approval of a compromise text by the European Parliament and the Council early in 2009, the Commission prepared a provisional request to CESR for technical advice on possible implementing measures concerning the future UCITS Directive (”the mandate”). The mandate is split into three parts as set out below. This consultation paper sets out CESR’s proposals under Part III.

3. Part I concerns measures related to the management company passport, while Part II covers implementing measures on the form and content of key investor information disclosures for UCITS. CESR’s draft advice on these implementing measures are set out in two consultation papers published on 8 July 2009 (Ref. CESR/09-624 and Ref. CESR/09-552 respectively). The deadline for delivery of CESR’s advice on Parts I and II is 30 October 2009.

4. Part III concerns measures related to mergers of UCITS, master-feeder structures and the notification procedure for cross-border marketing. The Commission is not under a legal obligation to adopt implementing measures in any of these areas. As such, the Commission encouraged CESR to focus firstly on the advice for Parts I and II. However, the Commission invited CESR to reflect on the best way to organise its work such that all necessary level 2 measures, including those under Part III of the mandate, are adopted in time to be implemented by Member States within the timeframe imposed by the level 1 Directive.

5. Following receipt of the mandate, CESR published a call for evidence on 17 February 2009 (Ref. CESR/09-179) to which it received 30 responses. These responses, which are available on CESR’s website, have been taken into account in the preparation of CESR’s advice. The advice has been prepared by the Investment Management Expert Group which is chaired by Mr Lamberto Cardia, Chairman of the Italian securities regulator, the Commissione Nazionale per le Società e la Borsa (CONSOB). Impact of the proposed approach

6. CESR is mindful of the impacts of its proposals. In order to develop a better understanding of the possible costs and benefits of CESR’s approach, stakeholders are invited to give specific input on likely impacts - including quantitative estimates wherever possible - of the draft advice. For this purpose, questions on costs and benefits are included throughout the document. This approach is in line with the request in the Commission’s mandate that CESR should present appropriate impact assessments in support of its advice.

A conclusione, la Committee “invites responses to this consultation from all stakeholders by 17 November 2009. During the consultation, an open hearing will be held at CESR’s premises, full details of which will be made available on CESR’s website in due course“.