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Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision (Text with EEA relevance)RecitalsChapter I Definitions (art. 1)Article 1 DefinitionsChapter II General provisions (arts. 2-15)Section 1 Calculation of assets under management (arts. 2-5)Article 2 Calculation of the total value of assets under managementArticle 3 Ongoing monitoring of assets under managementArticle 4 Occasional breach of the thresholdArticle 5 Information to be provided as part of registrationSection 2 Calculation of leverage (arts. 6-11)Article 6 General provisions on the calculation of leverageArticle 7 Gross method for calculating the exposure of the AIFArticle 8 Commitment method for calculating the exposure of an AIFArticle 9 Methods of increasing the exposure of an AIFArticle 10 Conversion methodologies for derivative instrumentsArticle 11 Duration netting rulesSection 3 Additional own funds and professional indemnity insurance (arts. 12-15)Article 12 Professional liability risksArticle 13 Qualitative requirements addressing professional liability risksArticle 14 Additional own fundsArticle 15 Professional indemnity insuranceChapter III Operating conditions for AIFMs (arts. 16-82)Section 1 General principles (arts. 16-29)Article 16 General obligations for competent authoritiesArticle 17 Duty to act in the best interests of the AIF or the investors in the AIF and the integrity of the marketArticle 18 Due diligenceArticle 19 Due diligence when investing in assets of limited liquidityArticle 20 Due diligence in the selection and appointment of counterparties and prime brokersArticle 21 Acting honestly, fairly and with due skillsArticle 22 ResourcesArticle 23 Fair treatment of investors in the AIFArticle 24 InducementsArticle 25 Effective employment of resources and procedures - handling of ordersArticle 26 Reporting obligations in respect of execution of subscription and redemption ordersArticle 27 Execution of decisions to deal on behalf of the managed AIFArticle 28 Placing orders to deal on behalf of AIFs with other entities for executionArticle 29 Aggregation and allocation of trading ordersSection 2 Conflicts of interest (arts. 30-37)Article 30 Types of conflicts of interestArticle 31 Conflicts of interest policyArticle 32 Conflicts of interest related to the redemption of investmentsArticle 33 Procedures and measures preventing or managing conflicts of interestArticle 34 Managing conflicts of interestArticle 35 Monitoring conflicts of interestArticle 36 Disclosure of conflicts of interestArticle 37 Strategies for the exercise of voting rightsSection 3 Risk management (arts. 38-45)Article 38 Risk management systemsArticle 39 Permanent risk management functionArticle 40 Risk management policyArticle 41 Assessment, monitoring and review of the risk management systemsArticle 42 Functional and hierarchical separation of the risk management functionArticle 43 Safeguards against conflicts of interestArticle 44 Risk limitsArticle 45 Risk measurement and managementSection 4 Liquidity management (arts. 46-49)Article 46 Liquidity management system and proceduresArticle 47 Monitoring and managing liquidity riskArticle 48 Liquidity management limits and stress testsArticle 49 Alignment of investment strategy, liquidity profile and redemption policySection 5 Investment in securitisation positions (arts. 50-56)Article 50 DefinitionsArticle 51 Requirements for retained interestArticle 52 Qualitative requirements concerning sponsors and originatorsArticle 53 Qualitative requirements concerning AIFMs exposed to securitisationsArticle 54 Corrective actionArticle 55 Grandfathering clauseArticle 56 InterpretationSection 6 Organisational requirements - general principles (arts. 57-66)Article 57 General requirementsArticle 58 Electronic data processingArticle 59 Accounting proceduresArticle 60 Control by the governing body, senior management and supervisory functionArticle 61 Permanent compliance functionArticle 62 Permanent internal audit functionArticle 63 Personal transactionsArticle 64 Recording of portfolio transactionsArticle 65 Recording of subscription and redemption ordersArticle 66 Recordkeeping requirementsSection 7 Valuation (arts. 67-74)Article 67 Policies and procedures for the valuation of the assets of the AIFArticle 68 Use of models to value assetsArticle 69 Consistent application of valuation policies and proceduresArticle 70 Periodic review of valuation policies and proceduresArticle 71 Review of individual values of assetsArticle 72 Calculation of the net asset value per unit or shareArticle 73 Professional guaranteesArticle 74 Frequency of valuation of assets held by open-ended AIFsSection 8 Delegation of AIFM functions (arts. 75-82)Article 75 General principlesArticle 76 Objective reasons for delegationArticle 77 Features of the delegateArticle 78 Delegation of portfolio or risk managementArticle 79 Effective supervisionArticle 80 Conflicts of interestArticle 81 Consent and notification of sub-delegationArticle 82 Letter-box entity and AIFM no longer considered to be managing an AIFChapter IV Depositary (arts. 83-102)Section 1 Particulars of the written contract (art. 83)Article 83 Contractual particularsSection 2 General criteria for assessing the prudential regulation and supervision applicable to depositaries in third countries (art. 84)Article 84 Criteria for assessing prudential regulation and supervision applicable to a depositary in a third countrySection 3 Depositary functions, due diligence duties and segregation obligation (arts. 85-99)Article 85 Cash monitoring - general requirementsArticle 86 Monitoring of the AIF's cash flowsArticle 87 Duties regarding subscriptionsArticle 88 Financial instruments to be held in custodyArticle 89 Safekeeping duties with regard to assets held in custodyArticle 90 Safekeeping duties regarding ownership verification and record keepingArticle 91 Reporting obligations for prime brokersArticle 92 Oversight duties - general requirementsArticle 93 Duties regarding subscription and redemptionsArticle 94 Duties regarding the valuation of shares/unitsArticle 95 Duties regarding the carrying out of the AIFM's instructionsArticle 96 Duties regarding the timely settlement of transactionsArticle 97 Duties related to the AIF's income distributionArticle 98 Due diligenceArticle 99 Segregation obligationSection 4 Loss of financial instruments, liability discharge and objective reasons (arts. 100-102)Article 100 Loss of a financial instrument held in custodyArticle 101 Liability discharge under Article 21(12) of Directive 2011/61/EUArticle 102 Objective reasons for the depositary to contract a discharge of liabilityChapter V Transparency Requirements, Leverage, Rules Relating to Third Countries and Exchange of Information on the Potential Consequences of AIFM Activity (arts. 103-116)Section 1 Annual report, disclosure to investors and reporting to competent authorities (arts. 103-111)Article 103 General principles for the annual reportArticle 104 Content and format of the balance sheet or statement of assets and liabilities and of the income and expenditure accountArticle 105 Report on the activities of the financial yearArticle 106 Material changesArticle 107 Remuneration disclosureArticle 108 Periodic disclosure to investorsArticle 109 Regular disclosure to investorsArticle 110 Reporting to competent authoritiesArticle 111 Use of leverage on a 'substantial basis'Section 2 AIFMs managing leveraged AIFs (art. 112)Article 112 Restrictions on the management of AIFsSection 3 Specific rules relating to third countries (arts. 113-115)Article 113 General requirementsArticle 114 Mechanisms, instruments and proceduresArticle 115 Data protectionSection 4 Exchange of information on the potential systemic consequences of AIFM activity (art. 116)Article 116 Exchange of information on the potential systemic consequences of AIFM activityChapter VI Final provisions (art. 117)Article 117 Entry into forceAnnex I Methods of increasing the exposure of an AIFAnnex II Conversion methodologies for derivative instrumentsAnnex III Duration netting rulesAnnex IV Reporting templates: AIFMDone at
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Version status: Applicable | Document consolidation status: Updated to reflect all known changes
Version date: 22 July 2013 - onwards
Version 3 of 3

Article 100 Loss of a financial instrument held in custody

(Article 21(12) and (13) of Directive 2011/61/EU)

1. A loss of a financial instrument held in custody within the meaning of Article 21(12) of Directive 2011/61/EU shall be deemed to have taken place when, in relation to a financial instrument held in custody by the depositary or by a third party to whom the custody of financial instruments held in custody has been delegated, any of the following conditions is met:

(a) a stated right of ownership of the AIF is demonstrated not to be valid because it either ceased to exist or never existed;

(b) the AIF has been definitively deprived of its right of ownership over the financial instrument;

(c) the AIF is definitively unable to directly or indirectly dispose of the financial instrument.

2. The ascertainment by the AIFM of the loss of a financial instrument shall follow a documented process readily available to the competent authorities. Once a loss is ascertained, it shall be notified immediately to investors in a durable medium.

3. A financial instrument held in custody shall not be deemed to be lost within the meaning of Article 21(12) of Directive 2011/61/EU where an AIF is definitively deprived of its right of ownership in respect of a particular instrument, but this instrument is substituted by or converted into another financial instrument or instruments.

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