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Commission Delegated Regulation (EU) 2016/438Show full title
Commission Delegated Regulation (EU) 2016/438 of 17 December 2015 supplementing Directive 2009/65/EC of the European Parliament and of the Council with regard to obligations of depositaries (Text with EEA relevance)
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- Revised 01/04/20200.28 MB
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Changes and effects yet to be applied to Article 17:
- Regulation revoked by 2023 c. 29 Sch. 1 Pt. 3
Article 17U.K.Insolvency protection of [F1UK UCITS] assets when delegating custody functions
1.A depositary shall ensure that a third party located in a third country, to whom custody functions are to be or have been delegated in accordance with [F2rule 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook] takes all necessary steps in order to ensure that in the event of an insolvency of the third party, assets of a [F1UK UCITS] held by the third party in custody are unavailable for distribution among, or realisation for the benefit of, creditors of that third party.
2.A depository shall ensure that the third party takes the following steps:
[F3(a)receives legal advice from an independent natural or legal person confirming that the applicable insolvency law recognises the segregation of the assets of the depositary's clients from the third party's own assets, from the assets of the third party's other clients and from the assets held by the third party for the depositary's own account and that the assets of the depositary's [F1UK UCITS] clients do not form part of the third party's estate in case of insolvency and are unavailable for distribution among, or realisation for the benefit of, creditors of the third party to whom safekeeping functions have been delegated in accordance with [F4rule 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook];]
(b)ensures that the conditions laid down in the applicable insolvency laws and case law of that third country recognise that the assets of the depositary's [F1UK UCITS] clients are segregated and unavailable for distribution among, or realisation for the benefit of creditors, as referred to in point (a), are met when concluding the delegation agreement with the depositary as well as on an ongoing basis for the entire duration of the delegation;
(c)immediately informs the depositary where any of the conditions referred to in point (b) is no longer met;
F5(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(f)informs the depositary about the changes of applicable insolvency law and of its effective application.
F53.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.The depositary shall ensure that duties laid down in paragraphs 1 and 2 shall apply mutatis mutandis when the third party, to whom safekeeping functions are delegated pursuant to [F6rules 6.6B.22, 6.6B.25 and 6.6B.26 of the Collective Investment Schemes sourcebook], has decided to sub-delegate all or part of its safekeeping functions to another third party pursuant to [F7rule 6.6B.27 of the Collective Investment Schemes sourcebook].
Textual Amendments
F1Word in Regulation substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 60(2) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F2Words in Art. 17(1) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 60(21)(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F3Substituted by Commission Delegated Regulation (EU) 2018/1619 of 12 July 2018 amending Delegated Regulation (EU) 2016/438 as regards safe-keeping duties of depositaries (Text with EEA relevance).
F4Words in Art. 17(2)(a) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 60(21)(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F5Deleted by Commission Delegated Regulation (EU) 2018/1619 of 12 July 2018 amending Delegated Regulation (EU) 2016/438 as regards safe-keeping duties of depositaries (Text with EEA relevance).
F6Words in Art. 17(4) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 60(21)(c)(i) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
F7Words in Art. 17(4) substituted (31.12.2020) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 60(21)(c)(ii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
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