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General information about the FIDLEG

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FIDLEG

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Title 1: General provisions (Art. 1 – 5 FIDLEG)
Purpose, subject matter and scope. This section defines, in particular, financial instruments, financial services and financial service providers, as well as customer segmentation.

Title 2: Requirements for the provision of financial services (Art. 6 – 34 FIDLEG)
Regulation of the requirement for the provision of financial services concerning (Chapter 1)) knowledge required, (Chapter 2) rules of conduct, (Chapter 3) organisation and (Chapter 4) the register of advisers.

Title 3: Offering of financial instruments (Art. 35 – 71 FIDLEG)
Regulations concerning the offer of a financial instrument and the obligation to publish a prospectus.

Fourth title: Publication of documents (Art. 72 – 73 FIDLEG)
Right to receive a copy of the customer dossier.

Title 5: Ombudsman services (Art 74 – 86 FIDLEG)
Rules concerning the principle and the procedure before the ombudsman.

Title 6: Supervision and exchange of information (Art. 87 – 88 FIDLEG)

Title 7: Penal provisions (Art. 89 – 92 FIDLEG)
Consequences of breaches of the rules of conduct, breaches of the rules governing prospectuses and basic information leaflets and the consequences of unauthorised offers of financial instruments.

Title 8: Final provisions (Art. 93 – 96 FIDLEG)
In particular, the final provisions contain provisions on transitional periods.

Pursuant to Art. 2 para. 1 FIDLEG, the scope of application of the law refers – irrespective of its legal form – to financial service providers, client advisors, as well as creators and providers of financial instruments. Pension funds are not regarded as financial service providers. In particular, the investment foundations, the sole purpose of which is to manage pension assets, could be qualified on the basis of their function as financial service providers.

What is a financial services provider or client advisor?

  • All persons providing financial services on a commercial basis are deemed to be financial service providers within the meaning of Art. 3 lit. d FIDLEG. The new regulations thus cover supervised market participants such as banks, investment firms, fund management companies, insurance companies as well as all asset managers.
  • Client advisors within the meaning of Art. 3 lit. e FIDLEG are all employees of a financial service provider who provide financial services for clients. In other words, natural persons who provide financial services in their own name or in the name of a financial service provider. For example, employees of a bank who carry out transactions with financial instruments for bank customers or advise them on the investment of their assets are customer advisors within the meaning of this provision.

Art. 2 para. 2 FIDLEG determines to which legal entities the FIDLEG does not apply.

Commercial activity exists if the financial service provider carries out an independent economic activity aimed at permanent acquisition within the meaning of Art. 2 lit. b of the Commercial Register Ordinance of 17 October 2007 (HRegV).

A commercial activity is presumed to have taken place on the basis of the previous regulation in the Banking Ordinance if the financial services provider provides financial services for more than 20 customers or advertises the provision of financial services in advertisements, prospectuses, circulars or electronic media.

Financial instruments within the meaning of Art. 3 lit. a FIDLEG are deemed to be financial instruments:

  • Equity and debt securities: The term equity security covers securities that confer equity and voting rights in public limited companies, i.e. in addition to shares in their various forms (cf. Art. 622 ff. OR), participation and dividend-right certificates (Art. 656a ff and Art. 657 OR), as well as securities such as convertible bonds, which contain the right to acquire shares or securities equivalent to these;
  • Units in collective investment schemes pursuant to Art. 7 and 119 CISA, derivatives pursuant to Art. 2 FinfraG and structured products;
  • Risk or price-dependent deposits: Initially, deposits are recorded where the redemption value is risk or price-dependent, as is the case with precious metal accounts, for example;
  • Bonds as financial instruments: Bond obligations are portions of a total loan with uniform conditions with regard to interest rate, issue price, maturity, subscription period, hedging, etc.
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Customers may be natural or legal persons or partnerships as well as other legal entities formed under foreign law (e.g. trusts). The relationship between the financial service provider and the customer may be contractual or purely factual. Customers also include persons to whom the financial services provider first offers its services and with whom it has not yet agreed to provide the service.

Following MiFID II and the existing provisions in the CISA (cf. Art. 10 CISA), FIDLEG provides for customer segmentation which distinguishes between private customers on the one hand and professional customers on the other. According to FIDLEG, institutional clients are regarded as a subgroup of professional clients.

According to current practice, a professional treasury is to be affirmed if the company entrusts at least one professionally qualified person experienced in the financial sector with the permanent management of its financial resources.

The aim of customer segmentation is to combine each customer category with an appropriate level of protection. In other words, not all investors need to be equally protected from the risks of financial services. Different levels of protection are imposed due to different experiences and knowledge as well as financial circumstances of the clients. In this sense, private clients enjoy greater investor protection than professional clients, who in turn are better protected than institutional clients.

Pursuant to Art. 20 FIDLEG, the rules of conduct do not apply to transactions with institutional clients. Professional clients can explicitly waive the application of certain rules of conduct.

The financial services provider must assign its customers to the individual categories. The information provided by the client to the financial services provider is authoritative. If the financial service provider knows or suspects that the customer information is incorrect, he is obliged to ask the customer.

A subgroup of professional clients is the group of so-called institutional clients.

Institutional clients within the meaning of Art. 4 para. 3 lit. a-d and Art. 4 para. 4 FIDLEG are deemed to be institutional clients:

  • Financial intermediaries pursuant to the Banking Act, the Financial Institutions Act and the CISA;
  • Insurance undertakings pursuant to the ISA;
  • Foreign financial institutions subject to prudential supervision;
  • Central banks;

For the purposes of Art. 4 para. 2 FIDLEG, private customers are all customers who are not professional customers.

In order to meet specific customer needs, the FIDLEG provides for the possibility of avoiding schematic customer segmentation to a certain extent.

Wealthy private individuals can declare within the meaning of Art. 5 para. 1 FIDLEG that they do not wish to benefit from the higher level of protection afforded by the status of private customer (opting out).

Pursuant to Art. 5 para. 2 FIDLEG, private clients who (a) credibly declare that they have assets of at least CHF 500,000 and can assess the risks of a financial service on the basis of their knowledge and experience or (b) have assets of at least CHF 2,000,000 are entitled to opt-out.

Customers who, by law, are not subject to the increased level of protection of their retail customer status must be informed by the financial service provider of the possibility of opting in (Art. 5 para. 7 FIDLEG).

Opting-in is understood to mean the possibility of professional clients who are not institutional clients being able to submit to the increased level of protection of their retail client status by means of a written declaration (Art. 5 para. 5 FIDLEG).

Customer segmentation is relevant in several respects. For example, certain obligations of conduct do not apply to the provision of financial services to institutional clients (Art. 20 FIDLEG).

Specifically, when dealing with institutional clients, only the general duties to provide information, the provisions on accountability as well as the transparency and due diligence duties need to be complied with. In particular, no suitability or appropriateness test is required for financial services to institutional clients. The FIDLEG also provides certain facilities for the provision of services to professional clients, such as aptitude and appropriateness tests. In addition, customer segmentation is also important for the design of product documentation (e.g. in connection with exemptions from the prospectus requirement or the scope of application of the basic information sheet).

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With the entry into force of FIDLEG, financial service providers will be subject to a series of rules of conduct which they must comply with when providing financial services. These rules of conduct can be divided into the following groups:

  • Information obligations (Art. 8 f. FIDLEG);
  • Obligation to carry out aptitude and appropriateness tests (Art. 10 et seq. FIDLEG);
  • Documentation and accountability obligations (Art. 15 f. FIDLEG);
  • Transparency and due diligence obligations (Art. 17 et seq. FIDLEG).

Professional clients can dispense with the observance of certain rules of conduct. The rules of conduct do not apply to institutional clients.

The FIDLEG provides for various information obligations (Art. 8 FIDLEG and Art. 9 FIDLEG) which financial service providers will have to fulfil in future before concluding contracts or providing services. In future, financial service providers will have to inform customers about their identity, their field of activity and any economic ties, among other things. The duty to provide information also includes information on the services and financial instruments offered and their risks.

The FIDLEG provides for an aptitude and appropriateness test based on European law. A financial services provider providing investment advice or asset management services must obtain information from the client about the client’s financial situation, investment objectives and knowledge and experience of the financial services and instruments offered.

The purpose of the adequacy test pursuant to Art. 11 FIDLEG is to determine whether the client understands the risks associated with the service.

The suitability test within the meaning of Art. 12 FIDLEG serves to answer the question of whether the service is suitable for the customer in view of his willingness and ability to take risks.

The FIDLEG provides certain facilities for transactions with professional customers. It can therefore be assumed, without any indication to the contrary, that they have the necessary knowledge and experience. Furthermore, professional clients – with the exception of wealthy private individuals – can also be assumed to be able to bear the financial risks of the investment. Within the meaning of Art. 14 FIDLEG, no adequacy test is required in the context of a pure account/deposit relationship or in the case of execution-only transactions or services provided at the customer’s instigation.

The documentation and accountability obligations (Art. 15 and 16 FIDLEG) are intended to give the customer a better insight into the service provided by the financial services provider.

The financial service provider must be able to provide information to the supervisory authority at any time. As part of this documentation obligation, the financial service provider must also give reasons for its recommendation to sell or purchase financial products.

The documentation and accountability obligations (Art. 15 and 16 FIDLEG) are intended to provide customers with a better insight into the services provided by financial service providers.

The financial service provider must be able to provide information to the supervisory authority at any time. As part of this documentation obligation, the financial service provider must also document the reasons for which the purchase or sale of financial products was recommended or executed.

The documentation and accountability obligations (Art. 15 and 16 FIDLEG) are intended to give the customer a better insight into the service provided by the financial services provider.

The financial service provider must be able to provide information to the supervisory authority at any time. As part of this documentation obligation, the financial service provider must also give reasons for its recommendation to sell or purchase financial products.

The documentation and accountability obligations (Art. 15 and 16 FIDLEG) are intended to provide customers with a better insight into the services provided by financial service providers.

The financial service provider must be able to provide information to the supervisory authority at any time. As part of this documentation obligation, the financial service provider must also document the reasons for which the purchase or sale of financial products was recommended or executed.

Yes, compliance with the duties of conduct is checked by the supervisory authority and sanctions are imposed in the event of non-compliance. In addition, the FIDLEG provides for criminal liability for those persons who intentionally or negligently disregard the duties of conduct.

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Pursuant to Art. 21 FIDLEG, financial service providers, irrespective of any authorisation status, must structure their organisation in such a way that they can guarantee compliance with the obligations laid down in FIDLEG. In the case of supervised financial service providers in particular, corporate governance, risk management and the company’s internal control systems must be aligned with the provisions of the FIDLEG.

A financial service provider must ensure that its employees have the necessary skills, knowledge and experience. If necessary, the employees shall be entered in the register of consultants in accordance with Art. 28 et seq. FIDLEG to be entered.

Yes, financial service providers can call in third parties for the provision of services (Art. 23 FIDLEG). In doing so, they shall ensure that the persons consulted or their employees have the necessary skills, knowledge and experience and, if necessary, are entered in the register of advisors pursuant to Art. 28 et seq.

Yes, a financial services provider must ensure that its employees have the necessary skills, knowledge and experience and, if necessary, are entered in the register of advisors pursuant to Art. 28 et seq. of the Swiss Code of Obligations. FIDLEG are registered. This also means that a financial services provider must ensure that its employees are trained and further educated and that specific expertise is acquired.

In order to avoid conflicts of interest and disadvantages for customers as well as the acceptance of advantages and employee transactions, the FIDLEG provides for organisational precautions in Art. 25 – 27 FIDLEG.

Financial service providers must generally avoid conflicts of interest when providing services to clients. Accordingly, they ensure that their own interests and the interests of their employees do not conflict with those of their clients. They must also ensure that customer interests do not conflict with each other. In order to avoid conflicts of interest, financial service providers must first take the essential steps to identify potential or current conflicts of interest. In particular, they must examine whether there are incentives for the financial services provider or its employees to neglect the interests of customers or to put them behind their own interests. Both financial compensation from third parties to the financial service provider and incentives from the financial service provider to employees must be taken into account.

At the heart of avoiding conflicts of interest is Art. 26 FIDLEG, which provides for “compensation by third parties”. Pursuant to Art. 26 para. 3, this includes, among other things, brokerage fees, commissions, commissions, discounts or other economic advantages accruing to the financial services provider from third parties.

Such advantages may only be accepted by financial service providers if the customer has expressly waived the right to such advantages or if the advantages are passed on to the customer. The Federal Supreme Court practice developed under contract law aspects regarding the validity of a waiver of the surrender of such benefits is adopted and its applicability is simultaneously extended to all types of financial services.

Financial service providers who do not pass on the full benefits to their customers may no longer describe their services as independent in future.

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Yes, client advisors of domestic financial service providers who are supervised within the meaning of Art. 3 FINMA Act, as well as client advisors of foreign financial service providers, may only carry out their activities in Switzerland once they have been entered in a register of advisors.

The obligation to register applies only to the client advisors themselves, not their employers.
The advisor register contains information on the client advisor, the financial service provider for whom he works, the fields of activity, the training and further education completed by the client advisor and the ombudsman to whom the advisor or the financial service provider for whom he works is affiliated (Art. 30 FIDLEG). In this way, a customer can obtain information about a customer advisor. Since client advisors subject to registration are prohibited from exercising financial services without registration, the advisor register creates a control function.

Client advisors are only entered in the advisor register if they meet the relevant entry requirements. In addition to proof that they have undergone relevant training and have provided sufficient financial guarantees, whether through professional indemnity insurance or other equivalent financial guarantees, the financial service provider for whom they work must also be affiliated to an ombudsman pursuant to Article 74 et seq. of the Swiss Code of Obligations.

Client advisors may only be entered in the advisor register if they have not been convicted under criminal law of an infringement of Art. 86 and 86a ISA, of criminal offences against assets (Art. 137-172ter StGB) or entered in the criminal register on the basis of the criminal provisions of the FIDLEG.

Pursuant to Art. 31 para. 1 FIDLEG, the keeping of the advisor register is the responsibility of the registration office approved by FINMA.

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Pursuant to Art. 35 FIDLEG, a person in Switzerland who offers securities for sale or subscription by means of a public offering or who wishes to list securities on a stock exchange must first publish a prospectus.

The proposed rules on the obligation to publish a prospectus are largely based on the EU Prospectus Directive.

The content requirements for prospectuses largely correspond to current market practice and international standards (in particular European law).

The FIDLEG has detailed exceptions to the prospectus requirement (Art. 36 FIDLEG).

There is no obligation to publish a prospectus if the offer is directed at fewer than 500 investors or if the offer calculated over a period of 12 months does not exceed a total value of CHF 8,000,000 (Art. 36 para. 1 lit. b and e FIDLEG).

The FIDLEG contains only basic minimum requirements for the content of the prospectus as a framework law (Art. 40 FIDLEG). The concrete form is delegated to the Federal Council (Art. 46 FIDLEG).

Pursuant to Art. 58 FIDLEG, a so-called basic information sheet must be drawn up in addition to the prospectus requirement for financial instruments which are also offered to private clients.

The basic information sheet, which must be written in one of the official languages, must be easy to understand and thus enable private customers to see at a glance the essential characteristics of a financial instrument and to compare different products with each other (Art. 60 FIDLEG).

In particular, the basic information sheet shall describe the nature, characteristics, risk profile and yield of the financial instrument. It must also contain information on the cost, minimum holding period and liquidity profile of the financial instrument.

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Ombud services are already known from banking and insurance law. Art. 74 ff. FIDLEG provide for a mediation procedure with an ombudsman in order to settle legal disputes between customers and financial service providers.

Yes, the FIDLEG strengthens the institution of the ombudsman by obliging all financial service providers to join an ombudsman’s office and requiring official recognition of the ombudsman’s office by the Federal Department of Finance (FDF).

Financial service providers must join an ombudsman within six months of the FIDLEG coming into force, i.e. probably by 30 June 2020.

If the prerequisites are fulfilled, both the client and the financial service provider can initiate a procedure with the ombudsman. The procedure at the ombudsman’s office takes place in camera and is confidential. The procedure should be inexpensive or free of charge and run quickly, fairly and unbureaucratically. The ombudsman service should only collect cost-covering contributions from financial service providers.

In principle, there is no obligation to conduct proceedings before the ombudsman. Pursuant to Art. 78 para. 1 FIDLEG, however, the financial service provider is obliged to participate in the procedure if the customer has submitted a request for mediation to the ombudsman.

Yes, foreign financial service providers who provide cross-border services for Swiss clients in Switzerland must also join an ombudsman.

Yes, an ombudsman is obliged to accept a financial service provider if its connection requirements are met (Art. 81 FIDLEG).

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The violation of certain rules of conduct, the violation of regulations on prospectuses and basic information sheets and the unauthorised offering of financial instruments are punishable by FIDLEG in case of intentional actions.

Art. 89 FIDLEG sanctions violations of the FIDLEG’s duty to provide information, the duty to check aptitude and appropriateness and the duties in connection with the compensation of third parties. Financial service providers and in particular client advisors are affected.

In the event of a breach of the duty to provide information, anyone who deliberately provides false information or conceals material facts is liable to prosecution. Material facts include, in particular, information that is material to the client’s investment decision, such as information on risks.

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FINIG

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FINIG aims at the uniform regulation of the licensing requirements for financial institutions. All asset managers should be subject to prudential supervision. The regulations on supervision are kept general in the FINIG and are thus intended to create a comparable supervisory regime for the supervised entities.

At present, the licensing requirements of the various financial service providers are regulated in various decrees. These provisions, which are already in force, will be transferred to the FINIG without any material changes. The licensing provisions of the various financial service providers are now contained in a single law.

Chapter 1: General Provisions (Art. 1-16 FINIG)

The first section of this chapter defines the subject matter, purpose and scope. The common provisions include, among other things, the location of the financial institution’s management, the guarantee of proper business activity and the ombudsman. The licensing requirements for financial institutions are also regulated in Chapter 1. Further licensing requirements for the specific financial institutions can be found in Chapter 2.

Chapter 2: Financial institutions (Art. 17-60 FINIG)

Chapter 2 is divided into 6 sections:

  1. Section: Asset managers and trustees (Art. 17-23 FINIG)
  2. Section: Managers of collective assets (Art. 24-31 FINIG)
  3. Section: Fund management companies (Art. 32-40 FINIG)
  4. Section: Investment firms (Art. 41-51 FINIG)
  5. Section: Branches (Art. 52-57 FINIG)
  6. Section: Representations (Art. 58-60 FINIG)

Chapter 3: Supervision (Art. 61-67 FINIG)
4. Chapter: Liability and penalties (Art. 68-71 FINIG)
5 Chapter: Final provisions (Art. 72-75 FINIG)

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Pursuant to Art. 2 para. 1 FINIG, financial institutions within the meaning of the FINIG are deemed to be financial institutions:

  • Asset managers (Art. 17 para. 1 FINIG)
  • Trustees (Art. 17 para. 2 FINIG)
  • Manager of collective assets (Art. 24 FINIG)
  • Fund management companies (Art. 32 FINIG)
  • Investment firms (Art. 41 FINIG)

Art. 2 para. 2 FINIG lists the financial service providers that are not covered by the FINIG. Single family offices, SICAVs, SICAFs and limited partnerships for collective investment schemes are then not covered by the scope of the FINIG.

Persons who work exclusively in investment advisory services are not covered by the scope of the FINIG. However, the provisions of FIDLEG (Art. 28 et seq. FIDLEG) must be observed.

Pursuant to Art. 17 para. 1 FINIG, an asset manager is anyone who, on the basis of an order, is able to dispose commercially of the client’s assets in the name and for the account of the client.

Managers of collective assets who manage assets of collective investment schemes or pension funds that do not exceed the thresholds pursuant to Art. 24 para. 2 FINIG shall be regarded as asset managers.

Pursuant to Art. 17 para. 2 FINIG, a trustee is a person who, on the basis of the instrument of constitution of a trust within the meaning of the Hague Convention, manages or disposes of the law applicable to trusts and their recognition as special assets for the benefit of the beneficiaries or for a specific purpose.

Independent asset managers and trustees now require FINMA approval. They shall report to FINMA within 6 months of the FINIG coming into force. Within 3 years of the FINIG coming into force, independent asset managers and trustees must meet the requirements and submit a licence application. They may continue their activities until a decision is taken on the licence, provided that they are affiliated to a self-regulating organisation pursuant to Art. 24 AMLA and that they are supervised by that self-regulating organisation with regard to compliance with the relevant obligations.

Independent asset managers and trustees who commence their activities within one year of the FINIG taking effect must report immediately to FINMA and meet the licensing requirements from the commencement of their activities, with the exception of proof of affiliation to a supervisory organisation pursuant to Art. 7 para. 2 FINIG. No later than one year after FINMA has approved a supervisory organisation pursuant to Art. 43a FINMA Act, they must join such a supervisory organisation and submit an application for approval. They may continue their activities until a decision is taken on the licence, provided that they are affiliated to a self-regulating organisation pursuant to Art. 24 AMLA and that they are supervised by that self-regulating organisation with regard to compliance with the relevant obligations.

Managers of assets of collective investment schemes that have not reached the thresholds of the CISA and do not require FINMA approval now require FINMA approval as independent asset managers (Art. 24 para. 2 lit. a FINIG).

They shall report to FINMA within 6 months of the FINIG coming into force. Within 3 years of the FINIG coming into force, independent asset managers and trustees must meet the requirements and submit a licence application. They may continue their activities until a decision is taken on the licence, provided that they are affiliated to a self-regulating organisation pursuant to Art. 24 AMLA and that they are supervised by that self-regulating organisation with regard to compliance with the relevant obligations.

Representatives of foreign collective investment schemes offered in Switzerland exclusively to qualified investors do not require FINMA approval. If foreign collective investment schemes are offered to wealthy clients pursuant to Art. 5 para. 1 FIDLEG or to non-qualified clients, FINMA is required to obtain a licence.

Fund management companies that have already been approved as such pursuant to Art. 2 lit. a CISA at the time the FINIG comes into force do not require a new approval. However, they must meet the FINIG requirements within one year of their entry into force.

Distributors do not require FINMA approval and are not supervised by FINMA. The corresponding provisions are deleted from the CISA without replacement. However, a distributor must observe the rules of conduct according to FIDLEG.

The FINIG does not apply to persons who exclusively manage the assets of persons economically or family-related to them (Art. 2 para. 2 lit. a FINIG). This includes in particular so-called single family offices. These do not require FINMA approval.

If a Family Office works for several customers, it is a Multi Family Office. In future, these will require a licence as asset managers pursuant to Art. 17 para. 1 FINIG.

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Currently, financial market law applies the principle that a new licence must be obtained for each activity requiring a licence. Art. 8 CISO already provides for individual exceptions to the licensing requirement, so that, for example, fund management companies authorised by FINMA do not require an additional licence to operate as asset managers of collective investment schemes.

Art. 6 FINIG now provides for a licensing cascade. The highest licence level, and thus the most intensive level in terms of supervisory law, is represented by the banks (cf. Art. 6 para. 1 FINIG). Asset managers represent the lowest level (cf. Art. 6 para. 4 FINIG). The licensing cascade pursuant to Art. 6 FINIG enables financial institutions at higher levels to waive the licensing of activities at subsequent levels. If, for example, a bank wishes to act in addition as a securities dealer, no additional FINMA authorisation needs to be obtained.

Investment advisors and distributors do not require FINMA approval, but must observe the FIDLEG rules of conduct.

The fund management represents an exception to the licensing cascade. Together with the securities firm, it belongs to the second highest licensing level. Due to the characteristics of the fund management, however, it is not covered by the approval cascade. If a bank or an investment firm wishes to operate an additional fund management company, an additional FINMA licence must therefore be obtained (cf. Art. 6 paras. 1 and 2 FINIG).

Risikomanagement und Compliance

Allgemein

Art. 21 FINIG äussert sich zum Risikomanagement und zur Compliance. Abs. 1 hält fest, dass unabhängige Vermögensverwalter und Trustees über ein angemessen ausgestattetes Risikomanagement und eine wirksame interne Kontrolle (Compliance) verfügen müssen, die unter anderem die Einhaltung der rechtlichen und unternehmensinternen Vorschriften gewährleistet.

Gem. Abs. 2 kann mit den Aufgaben des Risikomanagements und der Compliance ein qualifizierter Geschäftsführer, ein qualifizierter Mitarbeiter oder eine qualifizierte externe Stelle betraut werden. Zu beachten gilt jedoch, dass diejenigen Personen, die mit den Aufgaben des Risikomanagements und der Compliance betraut werden, nicht in die Tätigkeiten eingebunden werden dürfen, die sie überwachen (vgl. Abs. 3).

 

Auswirkungen der Bestimmung über das unabhängige Risikomanagement und die Compliance auf kleine Vermögensverwaltungsunternehmen

Für kleine Vermögensverwaltungsunternehmen bedeutet dies, dass, sofern keine externe Stelle mit dieser Aufgabe betraut wird (vgl. auch Art. 14 FINIG), ein qualifizierter Geschäftsführer oder ein qualifizierter Mitarbeiter ausschliesslich für das Risikomanagement und die Compliance zuständig sein muss oder zumindest nicht in die Tätigkeiten, die er überwacht, eingebunden werden darf. Diese Regelung ist insb. für Vermögensverwaltungsunternehmen mit einer kleinen Anzahl Vollzeitstellen einschneidend.

Im E-FINIV äussert sich der Bundesrat zu dieser Thematik insofern, als die Unabhängigkeit des Risikomanagements und der Compliance bei einer Unternehmensgrösse von 5 oder weniger Personen, einen jährlichen Bruttoertrag von weniger als CHF 1.5 Mio. oder einem Geschäftsmodell ohne erhöhte Risiken nicht gegeben sein muss (vgl. Art. 19 Abs. 2 E-FINIV). Es bleibt jedoch abzuwarten, ob die Bestimmung in dieser Form Eingang in die Endfassung des FINIV erlangt.

 

Aufsichtsrechtliche Bestimmungen

Welche Aufsichtsbehörde ist für welchen Finanzdienstleister zuständig?

Verwalter von Kollektivvermögen, Fondsleitungen und Wertpapierhäuser werden von der FINMA beaufsichtigt (Art. 61 Abs. 3 FINIG).

Unabhängige Vermögensverwalter und Trustees werden von einer noch zu schaffenden Aufsichtsorganisation beaufsichtigt, die ihrerseits von der FINMA beaufsichtigt wird (Art. 61 Abs. 1 FINIG).

Financial institutions are generally subject to an annual supervisory audit (Art. 62 para. 1 or Art. 63 para. 1 FINIG). The supervisory authority may order an audit frequency of several years, taking into account the activity and the associated risks. In the case of independent asset managers and trustees, the audit frequency may be increased to a maximum of 4 years (cf. Art. 62 para. 2 or Art. 63 para. 2 FINIG).

If there is no periodic audit, the financial institutions shall report to the supervisory organisation or FINMA on the conformity of their business activities with the legal requirements (cf. Art. 62 para. 3 or Art. 63 para. 3 FINIG).

Responsibility

Civil liability

The responsibility of the financial institutions and their bodies is governed by the provisions of the Swiss Code of Obligations. Where tasks are delegated to a third party, the financial institution shall be liable for any damage caused by that third party unless there is evidence that the financial institution exercised due care in the selection, instruction and supervision of the third party (Art. 68 FINIG).

Criminal liability

The penal provisions are laid down in Art. 69-71 FINIG.

FIDLEG

Financial Services Act

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FINIG

Financial Institutions Act

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simplyFIDLEG by AvelaLaw AG

AvelaLaw is based in Zurich and specializes in advisory services across the entire spectrum of compliance, risk management and legal advice for financial service providers such as asset managers, fund management companies, financial advisors and banks.

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