Conflicts of interest

(1) In performing its duties, the depositary must act honestly, fairly, professionally, independently, and in the interest of the domestic AIF and its investors.
(2) The depositary may not perform any tasks in relation to the domestic AIF, or the AIF management company acting for the account of the domestic AIF, that could create conflicts of interest between the domestic AIF, the investors of the domestic AIF, the AIF management company, and itself. This does not apply where a functional and hierarchical separation of the performance of its tasks as depositary from its potentially conflicting tasks has been carried out, and the potential conflicts of interest are properly identified, managed, monitored, and disclosed to the investors of the domestic AIF. The depositary must ensure, through organisational and procedural rules, that conflicts of interest between the depositary and the AIF management company are avoided in the performance of its tasks. Compliance with these rules must be monitored by a body independent up to and including management level. Where a natural person is appointed as trustee under section 80(3) and (4) to perform the depositary function, only the first sentence applies.
(3) With regard to special AIF, the depositary may not reuse the assets named in section 81 without the prior consent of the domestic special AIF, or of the AIF management company acting for the account of the domestic special AIF; for retail AIF, reuse is permissible only under the conditions of section 70(5); with regard to the reuse of financial instruments received as collateral, reference is made to Article 15 of Regulation (EU) 2015/2365 for both special AIF and retail AIF.
(4) In order to avoid conflicts of interest between the depositary and the AIF capital management company or the domestic AIF or its investors,
1. an AIF capital management company may not perform the tasks of a depositary,
2. a prime broker acting as counterparty in transactions for the account of the domestic AIF may not perform the tasks of a depositary for this domestic AIF; this does not apply where a functional and hierarchical separation of the performance of its tasks as depositary from its tasks as prime broker exists, and the potential conflicts of interest are properly identified, managed, monitored, and disclosed to the investors of the domestic AIF. Subject to compliance with the conditions under section 82, it is permissible for the depositary to delegate its custody tasks to such a prime broker.
(5) Managers, holders of general commercial power of attorney (Prokuristen), and agents holding power of attorney for the entire business operations of the depositary may not simultaneously be employees of the AIF capital management company. Managers, holders of general commercial power of attorney, and agents holding power of attorney for the entire business operations of the AIF capital management company may not simultaneously be employees of the depositary. Where a natural person is appointed as trustee under section 80(3) and (4) to perform the depositary function, that person may not simultaneously be a member of the management board or the supervisory board, a partner, or an employee of the AIF capital management company or an undertaking affiliated with it. For the requirements applicable to a depositary holding in custody the assets of retail AIF, to fulfil its duty, within the meaning of subsection (1), to act independently of the AIF capital management company in performing its tasks, Article 21, letters a to c and e, Article 22(5), and Articles 23 and 24 of Delegated Regulation (EU) 2016/438 apply correspondingly.