Records must be drawn up, detailing the performed transactions and the clarifications required in accordance with the GwG (Art. 7 GwG), so that expert third parties (i.e. not any third party) are able to form a reliable opinion about:
- the transactions and business relationships, as well as about
- adherence to the provisions of the GwG.
As the nature of the records is not specified, the financial intermediary is responsible for deciding the manner in which these are to be kept (physically, electronically). However, steps must be taken to ensure that any possible requests for information or confiscation issued by the law enforcement agencies can be complied with within a reasonable period. This obligation may not be underestimated, and requires corresponding organisational measures to be put in place.
Attention
The records must be archived for 10 years. Depending upon the classification of the particular record, this period shall commence either at the time of the ending of the business relationship or at the time of the completion of the transaction (cf. archiving period for business records under civil law Art. 962 OR).
In the case of financial intermediaries pursuant to Art. 2 Para. 3 GwG, who are directly under the supervision of the FINMA pursuant to Art. 14 GwG (so-called “DUFI”), the Money Laundering Ordinance of the FINMA (“GwV-FINMA”) specifies precisely which documents must be archived under all circumstances (cf. Art. 62 GwV-FINMA):
- a copy of the documents which were used to identify the contracting party;
- in cases of the ascertainment of the beneficial owner, the written declaration of the contracting party concerning the identity of the beneficial owner;
- a written memorandum detailing the results of the applications of the criteria used to identify business relationships with heightened risks;
- a written memorandum or documents detailing the results of the additional clarifications conducted in conjunction with business relationships or transactions with heightened risks;
- documents relating to the performed transactions;
- a copy of the reports made pursuant to Art. 9 Para. 1 GwG;
- a list of the maintained business relationships which are of GwG relevance.
The Ordinance furthermore stipulates that the documents relating to the performed transactions must be maintained in such a form that each individual transaction can be traced. It is essentially case that the archiving of documents and records must be
- in Switzerland, and
- kept accessible at all times.
If the documents are archived in electronic form, then these must firstly comply with the provisions of the Swiss Business Records Ordinance (“Geschäftsbücherverordnung”) of 24 April 2002, and secondly in the case of the deployment of servers located abroad, steps must be taken to ensure that either physical or electronic copies of the necessary documents are available in Switzerland.
