ESMA issues opinion on asset segregation and applying depositary delegation rules to CSDs

The European Securities and Markets Authority (ESMA) has published an opinion to the EU Commission, Council and the Parliament setting out possible clarifications of legislative provisions under the Alternative Investment Fund Managers Directive (AIFMD) and the Undertakings for Collective Investment in Transferable Securities (UCITS) Directive. The suggested clarifications relate to the asset segregation requirements in case of safe-keeping duties by the appointed depositary of a fund (UCITS or alternative investment fund (AIF)) and the application of depositary delegation rules to central securities depositaries (CSDs).

In its opinion, ESMA suggests a regime which ensures:

• assets are clearly identifiable as belonging to the AIF/UCITS, consistent with any reuse (where permitted); and
• investors receive adequately robust protection by avoiding the ownership of the assets being called into question in case of the insolvency of any of the entities in the custody chain.

ESMA concludes that only minimum EU-wide segregation requirements should be prescribed, leaving room for stricter requirements or different account structures if national laws in specific Member States make them necessary.