In Commission Delegated Regulation (EU) 2016/438, which entered into force on 13 October 2016, the European Commission sets out in detail the conditions linked to the independence requirement for UCITS management companies and depositaries. The regulation specifies details of the independence requirement in particular for the case that there is a group link between the depositary and the management company. This applies if both belong to the same group. If such a group link exists, at least one third of the members or two persons, whichever is lower, on the supervisory board concerned must be independent. The regulation also defines the term of independence. One of the requirements for the independence of supervisory board members is that they are free of any business, family or other relationship with the management company, the depositary or any other undertaking within the group. Otherwise this could give rise to a conflict of interest or impair the judgement of the supervisory board member.

Where the management company appoints a depositary to which it has a link or a group link, the regulation specifies that certain documentary evidence has to be provided: the management company has to make an assessment comparing the merits of appointing a depositary with a link or a group link with the merits of appointing a depositary that has no such link. The comparison has to take into account at least the costs, the expertise, financial standing and the quality of services provided by all depositaries assessed. In addition, the management company has to prepare a report based on this assessment, justifying the appointment of the depositary with a link or group link.