TAILIEUCHUNG - Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

As can be seen from this table, measures on SEF compliment other measures and could amplify their impact too. The impact of the various measures together is likely to be stronger than their impact individual. Notably, measures by the EIF to provide seed finance via fund of fund structures to funds targeting social business could strongly complement steps to create a EU framework for such funds, by increasing investments into such funds. Also, EU steps to create such a framework could increase the effectiveness of the EIF steps, by reducing search costs for the EIF fund of funds and. | A EUROPEAN COMMISSION Strasbourg COM 2012 350 final 2012 0168 COD Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2009 65 EC on the coordination of laws regulations and administrative provisions relating to undertakings for collective investment in transferable securities UCITS as regards depositary functions remuneration policies and sanctions Text with EEA relevance SWD 2012 185 final sWd 2012 186 final EN EN EXPLANATORY MEMORANDUM 1. Context of the proposal . General Since the UCITS Directive was adopted in 1985 the rules relating to depositaries in the Directive have remained unchanged they consist of a number of generic principles setting out the duties of depositaries. The principal UCITS rule is that all assets of a UCITS fund must be entrusted to a depositary. This depositary shall in accordance with national law be liable for losses suffered as a result of a failure to perform its duties. The UCITS Directive apart from employing a negligence-based standard makes reference to national laws in respect of the precise contours of these duties. This reference leaves considerable scope for diverging interpretations regarding the scope of a depositary s duties and the liability for the negligent performance thereof. As a result different approaches have developed across the European Union leading to UCITS investors facing uneven levels of protection in different jurisdictions. The potential consequences of national divergences in the liability standard came to the fore following the Lehman bankruptcy1 and the Madoff fraud. In particular the consequences of the Madoff fraud have been particularly acute in some EU Member States. In one instance a particular fund that acted as a feeder fund for Madoff lost around billion. The large scale of the Madoff fraud essentially went undetected for a long period because the depositary had delegated custody of the assets to an entity run by Bernard Madoff the US broker

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