No Delegation Without Control: AMF Sharpens the Rules for UCITS and AIF Depositaries

In July 2026, the AMF published an updated guide for UCITS and AIF depositaries (EN_Guide dépositaire d'OPCVM et de FIA_juillet 2026_revue AC.pdf), replacing its 2018 UCITS V guidance. It now also covers AIF depositaries, crypto-assets, DLT-based instruments, and depositaries' escalation procedures. AMCs and CASPs are encouraged to read the sections relevant to their relationship with depositaries.

Ratio monitoring: the core obligation

Because checking the legality of a UCITS' or AIF's investment decisions cannot be delegated, the depositary must calculate regulatory and statutory ratios itself, using its own tool. That tool may be sourced from a technical service provider — but that provider must not also be the AMC's administrative/accounting agent, and the depositary must be able to verify the calculations independently.

A narrow exception applies: if the depositary genuinely cannot obtain the underlying data itself, it may rely on AMC-produced data for specific checks — but only after auditing the AMC's methodology, confirming it is sound and controllable, and periodically verifying it is still correctly applied. Ratio compliance must in any case be checked at every transaction, and at minimum at every NAV publication.

Governance: The guide restates the UCITS V independence rules separating AMC and depositary management, including stricter requirements where a group link exists. An independent director may sit on both a group holding company's board and the depositary's, provided the holding company directly controls the depositary — but not on both the AMC's and the holding company's boards, as that creates a structural conflict.

Sub-custodians: Delegating custody to a third-country sub-custodian requires independent legal advice on the local insolvency/regulatory framework and asset segregation. General country-risk assessments may be shared across depositaries; contract-specific enforceability opinions must not. Depositaries must keep monitoring sub-custodians directly and cannot rely solely on their certifications.

Compliance vs. depositary control: Depositary control is an operational function and must be checked independently by compliance (second-level control). One employee may combine both roles only if the second-level check is outsourced to an independent third party.

Crypto-assets, DLT and e-money tokens: Depositaries can't custody crypto-assets or DLT-recorded securities but must verify ownership and keep records via contractually secured information flows with the AMC and custodian. They are not liable for equivalent-value return on loss of such assets — unlike MiCA CASP custodians, whose liability is capped at market value at loss. EMTs may settle subscriptions/redemptions subject to currency matching, and for UCITS/money market funds only for short transitional payment purposes.

Escalation procedures: Escalation procedures must define objective severity criteria, escalation deadlines, internal/external contacts (up to the AMF), and five-year record retention. They must be produced to the AMF on request.