On 29 July 2016, the draft law 7024 was submitted to the
This text proposes i.a. to clarify the depositary regime of
undertakings for collective investment (UCIs) which are subject to
the Part II (Part II funds) of the Law of 17 December
2010 (UCI Law) as introduced by the
Law of 10 May 2016 transposing the UCITS V
Directive (see our Fund News article on the transposition law).
Before the UCITS V transposition law, Part II funds were subject
to a dual depositary regime: Part II funds managed by an authorised
AIFM were subject to the AIFMD depositary regime, whereas
Part II funds managed by a registered AIFM were subject to the
depositary regime of the UCI Law. The Luxembourg legislator decided
to take the opportunity of this transposition to extend the UCITS
depositary regime to all Part II funds – whether they are
distributed to retail investors or not – in order to ensure
the same high level of protection to all retail investors.
Article 34 of the present draft law intends to clarify the
depositary regime of Part II funds by amending Article 88-3 of the
UCI Law. It proposes an exception to the recently introduced
depositary regime, allowing Part II funds which are marketed
exclusively to professional investors to remain under the
depositary regime of the AIFM Law. Part II funds will be considered
as distributed exclusively to professional investors when their
offering document expressly restrict the marketing of their shares
to professional investors on the Luxembourg territory in the
meaning of Article 4(1) ag) of Directive 2011/61/UE on Alternative
Investment Fund Managers (AIFMD).
Part II funds which are managed by a registered AIFM and whose
offering documents expressly restrict the marketing of their shares
to professional investors on the Luxembourg territory will be
subject to the depositary regime of the Law of 13
February 2007 on Specialised Investment Funds (SIF Law).
The complete text of the draft law is available under the
following web link.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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