NA PŘÍKOPĚ 28 115 03 PRAHA 1 CZECH REPUBLIC Consultation Paper on the UCITS Depositary Function Response of the Czech National Bank General statement The Czech National Bank is aware of the reasons that have led the European Commission to consultation on the topic of UCITS depositaries, and is convinced that the results of consultation will enable effective and beneficial measures to be adopted for the market, especially in terms of harmonising regulations for the operation of depositaries within the EU. The Czech National Bank agrees with the statement that the UCITS system has been successfully operating since 1985 and that during this time no serious problems have been noted. The recent cases of Madoff and Lehman Brothers can be considered as exceptions that prove the rule (failure of the individual, not the system). If there is any problem in the area of UCITS depositary regulation, then it lies not in the inadequate protection of investors, but primarily the inconsistent transposition and application of certain principles laid down in the UCITS Directive by individual Member States. The relatively vague wording of certain provisions of the directive enables their inconsistent interpretation, which has resulted in an inconsistent competitive environment that favours or contrarily discriminates individual subjects on the market. The initiation of prospective changes to UCITS depositary regulation at European level should be led by efforts to achieve a reasonable degree of unification and clarification of individual rules for depositary operation. The Czech National Bank considers any discrepancy between requirements for the operation of depositaries in the proposed AIFM Directive and the requirements laid down in the UCITS Directive as unfounded. We cannot agree to a situation where regulation for alternative funds for professional investors provides a higher degree of protection for investors and places greater demands on depositaries than the UCITS Directive. However, we do not see the resolution of this problem in the automatic adoption of these stricter requirements in UCITS depositary regulation, but primarily in assessing the justification for stricter regulation requirements for alternative fund depositaries. It is evident from communication from subjects performing the duties of depositaries in the Czech Republic 1 that increased requirements on depositary operation will be reflected in the higher costs of these activities, which will ultimately be borne by investors. In assessing changes to UCITS depositary regulation it is therefore essential to compare the benefits and costs, so that the functional UCITS system continues to provide investors with the opportunity for safe investment at an acceptable cost. 1 Only subjects with a bank licence can perform the duties of a UCITS depositary in the Czech Republic.
Czech National Bank s response to the consultation questions (1) Do you agree that the safe-keeping (and administration) duties of depositaries should be clarified? (2) Do you agree these duties should be clarified for each class of assets eligible to the UCITS portfolio? (3) Are there any other appropriate approaches? (4) Do you agree to a common horizontal and functional approach of the custody duties on the listed financial instruments, to be applied to UCITS depositaries? (5) Is there some specificity that may be applicable to the custody functions of a UCITS depositary that should be taken into account? We agree with the need for the clarification of the duties of depositaries at European level. However, based on our experience, we do not recommend that these duties be clarified for each class of eligible assets, as each type of eligible asset (e.g. money market instruments) can have different forms of registration in individual Member States. Uniform regulation at European level could therefore cause unwelcome problems in national regulation. In the case of custody, another possible approach could be to simply differentiate between assets, which legislation does not allow to be disposed of without the consent of the depositary (and to lay down the depositary s unlimited liability for their safekeeping) and other assets (or limited by prospectus), where investor protection would lie in information that these assets (with this portfolio share) are not under the depositary s control. This legal framework applies in the Czech Republic and has been proven in practice long-term. (6) Do you agree that the existing supervisory duties of the UCITS depositary should be clarified? (7) If so, what clarification do you suggest? (8) To what extent does the list of supervisory duties need to be extended? (9) Do you agree that the 'only one depositary' requirement should be clarified? In view of the fact that supervisory duties are closely tied to the depositary s subsequent liability, we agree with the proposed stricter definition of the depositary s supervisory duties in relation to UCITS funds at European level. Supervisory duties should be defined in such a way that it is clear what the depositary is liable for. We consider it particularly important to clearly define whether the depositary is expected to supervise orders ex ante (prior to order execution or other settlement of a transaction) or ex post (after order execution). In accordance with regulation in the Czech Republic, we recommend setting a general requirement for the depositary to conduct supervision prior to order execution. We only recommend supervision following the order execution in cases where the amount for which the order is issued does not exceed CZK 500,000 (appr. EUR 20,000) or the subject of the transaction is transferable securities or money market instruments admitted to or dealt in on a regulated market or units of UCITS. We agree that the only one depositary principle should be clearly clarified. (10) Do you think that the risks related to improper performance have been correctly identified? 2
(11) Do you foresee other situations where a risk associated with improper performance of the depositary duties might materialise? (12) Do you agree that safeguards against the risk associated with the improper performance of depositary duties, such as requiring that UCITS assets be segregated from the depositary s and sub-custodian's assets, should be introduced? We feel that the risks relating to improper performance have been duly identified. We support the need for the segregation of the depositary and sub-custodian s assets from assets that these subjects have in safekeeping from UCITS funds. (13) Do you agree there should be a general clarification of the liability regime applicable to the UCITS depositary in cases of improper performance of custody duties? (14) What adjustments to the liability regime associated to the custody duties of the UCITS depositary would be appropriate and under what conditions? We agree with the need for the clarification and harmonisation of the role of the depositary in relation to liability for the safekeeping and supervision of entrusted assets at European level. We are of the opinion that the depositary should be fully liable for all entrusted assets, even in cases where their loss occurs at a third party (sub-custody). Practice to date does not justify transferring the burden of proof to the depositary. This situation could lead to an increase in unfounded lawsuits against the depositary, i.e. an increase in legal (operative) risk for the depositary. What s more, this increased risk can be expected to result in increased costs for the execution of the depositary s duties, which will ultimately be borne by investors. Furthermore, transferring the burden of proof to depositaries does not automatically mean a significant increase in the standard of depositary activities. (15) Do you agree that the conditions upon which the UCITS depositary shall be able to delegate its duties to a third party should be clarified? (16) Under which conditions should the depositary be allowed to delegate the performance of its duties to a third party? (17) Do you agree that the depositary should be subject to additional on-going due diligence requirements when delegating the performance of its duties to a third party? We consider the full liability of the depositary for entrusted assets as a crucial requirement, even in cases where the depositary delegates the performance of its duties to a third party. We consider it reasonable for the rules governing delegation of performance to correspond to the requirements laid down in the MiFID 2 (Article 13 (5)). We particularly support the condition that the delegation of these activities must not jeopardise the performance of the depositary s activities. A condition of delegating activities to a third party should be the conclusion of a written contract, which does not allow the release of the fund s assets without the consent of the depositary, enables the depositary to block the order execution or takeover the fund s assets and to review the activities of the third party. (18) Do you share the Commission services approach to reviewing the ICSD, to allow 2 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004, on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC. 3
UCITS to benefit from a compensation scheme where the depositary defaults? (19) Do you agree that UCITS holders should also benefit from compensation if their custodian defaults and these assets are lost? We consider the proposal to expand the scope of the ICSD to include UCITS funds in the case of the depositary s default as unwelcome. We feel that if UCITS funds were to become part of the system for the compensation of investors, the relevant contributions to the system would also have to apply. These contributions would increase the operating costs of individual UCITS funds and thereby reduce their attractiveness for investors. We feel a more meaningful step to protect UCITS investors would be to set stricter requirements (capital and organisational requirements) for subjects eligible to perform depositary duties (viz. responses to the following questions). (20) Do you agree that the general organisation requirements that are applicable to a UCITS depositary should be clarified? (21) If so, to what extent? (22) Do you agree that requirements on conflicts of interest applicable to UCITS depositaries should be clarified? (23) If so, to what extent? We do not consider it necessary to set organisational requirements for the performance of the duties of a UCITS depositary, provided that institutions eligible to perform depositary activities are required to have sufficient capital as in the case of, for example, credit institutions subject to Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006, relating to the taking up and pursuit of the business of credit institutions (hereinafter CRD ). If other subjects are also authorised to perform depositary activities, they should comply with the same rules for organisation and operation as credit institutions. Particular attention must be devoted to conflicts of interest. In the case of depositaries that perform various activities or depositaries from a group, the independent performance of their function may be at risk (often as a result of efforts to utilise synergy effects), both in terms of material and personnel (e.g. if a management company concurrently delegates a large part of its activities relating to asset management risk management, asset valuation, calculation of NAV (net asset value) to a subject that also provides depositary services). (24) Do you agree that there is a need for clarifying the type of institutions that should be eligible to act as UCITS depositaries? (25) Do you agree that only institutions subject to the CDR should be eligible to act as UCITS depositaries? (26) If not, which types of institutions should be eligible to act as UCITS depositaries, and why? We agree with the need to clarify what type of subjects are eligible to perform depositary activities, in that these subjects can only be institutions subject to the CRD (2006/48/EC). We feel that only institutions subject to the CRD (2006/48/EC), that is, the relevant capital and organisational requirements, are able to ensure the required level of investor protection and bear relevant liability ensuing from depositary activities. We consider this requirement as minimum as Member States should have the possibility to impose stricter criteria and requirements on institutions acting as depositaries (e.g. limitation only on banks to act as 4
depositary) This regulatory measure will also resolve organisational and operating requirements, the obligation of audited annual financial statements, licensing and supervision. Question: (27) Do you agree that additional auditing requirements should be imposed, such as an annual certification of the depositary's accounts by independent auditors? We agree with the implementation of an obligation requiring certification of the depositary's accounts by independent auditors. (28) Do you agree that UCITS depositaries should be subject to a specific 'depositary' approval by national regulators? (29) Do you believe that there is need to promote further harmonisation of the supervision and cooperation by European regulators of depositary activities? What are your views on the creation of an EU passport for UCITS depositaries? We agree that the performance of depositary activities should be subject to approval by relevant national regulators. In principal, we are not against the possible introduction of EU passport for depositary activities. However, we point out the possible risks that must be addressed prior to its implementation. The introduction of EU passport for depositaries must be preceded by careful harmonisation of regulatory rules for its activity at European level. It is also absolutely crucial to clearly define individual regulators powers and obligations and their cross-border cooperation. We consider important the host supervisory authority is entitled to on-site inspection, there is a unification of conditions connected with depositary liability (eg. conditions that enable competent authorities to sanction the failure of performance duties by a depositary). In the opposite case, the passportisation of depositaries could lead to deterioration in the quality of depositary services (increasing operating risk, as a result of, for example, depositaries operating across the border supervising the valuation of securities and NAV calculation according to different legislation in each state). These risks should also be eliminated as much as possible. (30) As far as the UCITS portfolio and UCITS units or shares are concerned, do you agree that their value should be assessed by an independent valuator? (31) If so, what should be the applicable conditions for an entity to be eligible to act as an UCITS Valuator? Valuation is the primary duty of the UCITS fund or investment company in relation to the depositary s supervisory function. These subjects are also responsible for appropriate valuation. We thus see the function of an independent valuator as superfluous, as it is more important to ensure the supervisory functions of a duly operating depositary. We therefore do not recommend the introduction of the function of independent valuator as a regulatory measure. Use of the services of an independent valuator should be left up to individual funds or investment companies. 5