S.L. 370.32 Art. 47Eligibility criteria.

(1) The depositary of a non-UCITS retail scheme shall have an established place of business in Malta.

(2) Where a scheme which is licensed as a Professional Investor Fund appoints a depositary, such depositary shall be:

(a) an entity having an established place of business in Malta;

(b) an entity constituted in a Member State or EEA State other than Malta providing the services of depositary to collective investment schemes;

(c) an entity constituted outside Malta and operating from outside Malta providing the services of a depositary to collective investment schemes, where the competent authority is satisfied that such entity is of sufficient standing and repute and having the business organisation, systems, experience and expertise deemed necessary for it to act as depositary.

(3) The following entities shall be eligible to provide custody services to the collective investment schemes referred to in sub-

regulations (1) and (2):

(a) a credit institution authorised in accordance with the CRD and in possession of a licence issued in terms of the Banking Act;

(b) a branch established in Malta of a credit institution authorised in a Member State or EEA State;

(c) a branch established in Malta of an overseas credit institution which is subject to prudential requirements at least equivalent to the requirements applicable to Maltese credit institutions;

(d) a company incorporated in Malta, which is wholly owned by a credit institution, provided that the liabilities of the company are guaranteed by the credit institution and the credit institution is either a Maltese credit institution or a credit institution established in a Member State or EEA State and authorised in accordance with the CRD: Provided that, in such a case, the depositary shall be required to have a minimum of one director on its board of directors who is resident in Malta;

(e) a company incorporated in Malta which is wholly owned by a Maltese or foreign institution or company which is deemed by the competent authority to be an institution or company which provides unit-holders with protection equivalent to that provided by a depositary fulfilling the requirements of paragraphs (a), (b), (c) or (d) and provided the liabilities of the company acting as depositary are guaranteed by the institution or company and the institution or company has paid-up share capital of five million euro (€5,000,000) or its equivalent in foreign currency; or

(f) an investment firm in Malta or a branch of an investment firm established in a Member State or EEA State other than Malta, subject to capital adequacy requirements in accordance with the IFD and the IFR including capital requirements for operational risks and authorised in accordance with MIFID and which also provides the ancillary service of safe-keeping and administration of financial instruments for the account of clients, including custody and related services such as cash or collateral management in accordance with point (1) of Section B of Annex I of MIFID: Provided that such investment firms shall in any case have own funds not less than the amount of initial capital referred to in Article 9(1) of the IFD, as transposed in the Investment Services Rules.