Alternative depositary for private equity funds

With the introduction of the German Investment Code (Kapitalanlagegesetzbuch, hereinafter KAGB) in the context of the implementation of the Alternative Investment Fund Manager Directive (hereinafter AIFMD), the legislator has, in the interest of investor protection, also created a further regulatory institution for private equity funds, the (alternative) depositary pursuant to § 80ff KAGB.

The depositary is assigned a special role, as it is already directly involved as a supervisory vehicle in the ongoing business processes of the relevant alternative investment fund (hereinafter AIF) or the AIF capital management company (hereinafter KVG), whereas the Federal Financial Supervisory Authority (hereinafter BaFin) and, if applicable, the appointed auditor can only perform their supervisory functions significantly downstream in terms of time.

The implementation of the depositary also for alternative asset classes has its origin in the adoption of the AIFM Directive in 2011, which, in addition to other extensive regulatory and administrative requirements, also specifies the principles of the depositary's tasks. The subsequent Level II Regulation then specified the duties of the depositary and the contractual relationship between the German IMI and the depositary. The depositary finally acquired a binding legal character with the introduction of the KAGB in 2013, which, together with the Level II Regulation, forms the legal framework with regard to the depositary's tasks and duties.

The legal framework for the depositary at EU and German level is therefore as follows:

For alternative asset classes such as Private equity funds (hereinafter referred to as "PE funds") that do not acquire and manage typical assets that can be held in custody, the legislator has provided for a trustee in the form of a trustee pursuant to Section 80 para. 3 KAGB created a so-called "alternative depositary", which can be a constructive and reasonable alternative to a classic custodian bank solution for the responsible bodies of the KVG.

The trustee, typically an auditor, tax advisor or lawyer, performs the duties of a depositary in the course of his or her professional or business activities. In a letter dated July 18, 2013, BaFin issued a more specific statement in this regard in a "Merkblatt zu den Anforderungen an Treuhänder als Verwahrstelle nach § 80 Absatz 3 KAGB."