Directive 2009/65/EC of the European Parliament and of the CouncilShow full title

CHAPTER IV OBLIGATIONS REGARDING THE DEPOSITARY

Article 22

1. The assets of a common fund shall be entrusted to a depositary for safe-keeping.

2. A depositary’s liability as referred to in Article 24 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.

3. A depositary shall:

(a) ensure that the sale, issue, repurchase, redemption and cancellation of units effected on behalf of a common fund or by a management company are carried out in accordance with the applicable national law and the fund rules;

(b) ensure that the value of units is calculated in accordance with the applicable national law and the fund rules;

(c) carry out the instructions of the management company, unless they conflict with the applicable national law or the fund rules;

(d) ensure that in transactions involving a common fund’s assets any consideration is remitted to it within the usual time limits;

(e) ensure that a common fund’s income is applied in accordance with the applicable national law and the fund rules.

Article 23

1. A depositary shall either have its registered office or be established in the UCITS home Member State.

2. A depositary shall be an institution which is subject to prudential regulation and ongoing supervision. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

3. Member States shall determine which of the categories of institutions referred to in paragraph 2 shall be eligible to be depositaries.

4. The depositary shall enable the competent authorities of the UCITS home Member State to obtain, on request, all information that the depositary has obtained while discharging its duties and that is necessary for the competent authorities to supervise the UCITS compliance with this Directive.

5. Where the management company’s home Member State is not the UCITS home Member State, the depositary shall sign a written agreement with the management company regulating the flow of information deemed necessary to allow it to perform the functions set out in Article 22 and in other laws, regulations or administrative provisions which are relevant for depositaries in the UCITS home Member State.

6. The Commission may adopt implementing measures in relation to the measures to be taken by a depositary in order to fulfil its duties regarding a UCITS managed by a management company established in another Member State, including the particulars that need to be included in the standard agreement to be used by the depositary and the management company in accordance with paragraph 5.

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 112(2).

Article 24

A depositary shall, in accordance with the national law of the UCITS home Member State, be liable to the management company and the unit-holders for any loss suffered by them as a result of its unjustifiable failure to perform its obligations or its improper performance of them.

Liability to unit-holders may be invoked 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.

Article 25

1. No company shall act as both management company and depositary.

2. In the context of their respective roles, the management company and the depositary shall act independently and solely in the interest of the unit-holders.

Article 26

The law or the fund rules shall lay down the conditions for the replacement of the management company and the depositary and rules to ensure the protection of unit-holders in the event of such replacement.