Proposal for a regulation
Article 10 a (new)
Article 10a Depositary 1. For each venture capital fund it manages, the venture capital fund manager shall ensure that a single depositary is appointed in accordance with this Article. 2. The depositary shall be eligible to be a depositary under Article 21(3) of Directive 2011/61/EU and Article 23(3) of Directive 2009/65/EC. 3. The depositary shall be established in the Member State where the venture capital fund manager or the venture capital fund is located. 4. In order to avoid conflicts of interest between the depositary, the venture capital fund manager and/or the venture capital fund and/or its investors a venture capital fund manager shall not act as depositary. The depositary shall act honestly, fairly professionally, independently and in the interest of the qualifying venture capital fund and its investors. It shall not carry out activities which could generate conflicts of interests unless it has functionally and hierarchically separated its depositary tasks from the potentially conflicting tasks. 4. The depositary shall be responsible for the cash monitoring function and shall ensure on an ex-post basis that the venture capital fund's cash flows are properly monitored and that all payments made by or on behalf of investors upon the subscription of units or shares of a venture capital fund have been received. The depositary shall also ensure that all cash belonging to the venture capital fund has been booked in cash accounts opened in its name or in the name of the fund manager or in the name of the depositary. 5. The depositary shall be responsible for the safekeeping function and: (a) provide, at any time, a comprehensive and up-to-date inventory of the venture capital fund's assets for which it possesses sufficient and reliable information of the ownership right of the fund; (b) where relevant, ensure that all those financial instruments that can be registered in a financial instruments account opened in the depositary's books are registered in the depositary's books within segregated accounts in accordance with the principles set out in Article 16 of Directive 2006/73/EC, opened in the name of the venture capital fund or in that of the venture capital fund manager acting on behalf of the venture capital fund, so that they can be clearly identified as belonging to the venture capital fund in accordance with the applicable law at all times. The depositary may delegate safekeeping functions to third parties. When appointing a third party, the depositary shall ensure that the third party has the structure and expertise to perform the tasks. In particular, for custody tasks, the third party shall be subject to effective prudential regulation, including minimum capital requirements, and supervision in the jurisdiction concerned. 6. The depositary shall be liable to the qualifying venture capital fund and its investors of any loss suffered as a result of negligence or intentional failure. 7. In addition to the functions described in paragraphs 4 and 5, the depositary shall verify on an ex-post basis that the investments of the European venture capital fund are carried out in accordance with European venture capital funds investment rules.