As a consequence of the merger on 1 January 2009 of the previously independent supervisory authorities
- the Swiss Banking Commission (Eidgenössische Bankenkommission – “EBK”),
- the Federal Office of Private Insurance (Bundesamt für Privatversicherungen – “BPV”) and
- the Control Authority for Combating Money Laundering (Kontrollstelle für die Bekämpfung der Geldwäscherei – “Kst GwG”)
to create the Swiss Financial Market Supervisory Authority (Eidgenössischen Finanzmarktaufsicht – “FINMA”), supervision in the field of combating money laundering was streamlined.
Responsibility of FINMA/SRO
In respect of the supervisory responsibility of the FINMA or of SRO pertaining to adherence to the GwG obligations, a distinction is also made between the various above-described types of financial intermediation. That is to say, between those which are already subject to specific statutory supervision (so-called “banking sector”, Art. 2 Para. 2 GwG), and those which are subject to supervisory obligations on account of the rendering of specific financial services (so-called “non-banking sector”, Art. 2 Para. 3 GwG).
Specifically, supervision of adherence to the due diligence obligations (Art. 3 – 8 GwG) and the obligations in the event of suspected money laundering (Art. 9 – 11 GwG):
- for financial intermediaries who are already subject to special statutory supervisory obligations (Art. 2 Para. 2 GwG) lies with the FINMA, whereby casinos are subject to the supervision of the Swiss Casino Commission (Eidgenössischen Spielbankenkommission);
- for financial intermediaries pursuant to Art. 2 Para. 3 GwG lies with:
- the recognised self-regulating organisations (SRO), or
- the FINMA, insofar as the financial intermediary is not a member of a recognised self-regulating organisation (i.e. elective option).
Self-regulating organisations (SRO)
Licensing or membership obligation in the non-banking sector
Pursuant to the GwG, in the event of an activity as a financial intermediary in the non-banking sector pursuant to Art. 2 Para. 3 GwG, a licensing obligation or membership obligation exists (Art. 14 GwG). This means that financial intermediaries in the non-banking sector may choose which supervisory authority they wish to subject themselves to, within the meaning of a:
- direct subordination to the supervision of the FIMNA by means of a licence (so-called “DSFI”), or alternatively
- subjection within the meaning of membership of a self-regulating organisation (SRO)
For their part, the SROs are supervised by the FINMA. This consequently means that the financial intermediary who has joined an SRO is subject to the indirect supervision of the FINMA. A licence within the context of direct subordination to the FINMA shall be issued to a financial intermediary only if he:
- is entered in the commercial register as a commercial enterprise, or is correspondingly active on the grounds of an official licence;
- ensures compliance with the obligations pursuant to this Act through his internal regulations and his operating organisation; and
- he as well as the persons entrusted with his administration and management enjoy a good reputation and ensure fulfilment of the obligations pursuant to this Act.
Detailed list of the information and documents which a financial intermediary from the non-banking sector (Art. 2 Para. 3 GwG) is obliged to enclose with his FINMA licence application in conjunction with checks conducted into the licensing criteria (German)
Attorneys-at law and notaries who are active as financial intermediaries are obliged to subject themselves to a self-regulating organisation. These professional groups do not have an elective option, i.e. direct submission to the supervisory authority of the FINMA is not possible.
Supervision of financial intermediaries pursuant to Art. 2 Para. 2 GwG
In respect of financial intermediaries from the banking sector, the FINMA is responsible for detailing the GwG due diligence obligations and furthermore for stipulating the nature and manner of the fulfilment of the obligations. For this purpose it issues ordinances (cf. GwV-FINMA).
Supervision of financial intermediaries pursuant to Art. 2 Para. 3 GwG
In respect of money laundering, the statutory responsibilities of the FINMA distinguish between financial intermediaries from the non-banking sector in terms of whether these constitute financial intermediaries who are:
- directly or alternatively
- indirectly subordinated to its supervision.
Directly subordinated financial intermediaries
In respect of directly subordinated financial intermediaries in the non-banking sector (so-called “DSFI”) the FINMA is responsible for detailing the GwG due diligence obligations and furthermore for stipulating the nature and manner of the fulfilment thereof (cf. GwV-FINMA). In addition, it maintains a register of the directly subordinated financial intermediaries as well as of the persons whom it has refused to issue permits to work as financial intermediaries.
Art. 19a GwG – Checks
1 Financial intermediaries directly subordinated to the FINMA pursuant to Article 2 Para. 3 must subject themselves to periodic checks by a licensed audit company.
2 The audit company shall check adherence to the obligations established under this Act and shall send a report to the audited financial intermediary as well as to the FINMA.
3 Should it ascertain breaches of the statutory supervisory provisions or other shortcomings, then it shall record these in its report.
4 The FINMA may conduct the check itself instead of the audit company.
Financial intermediaries who are not directly subordinated
By contrast, financial intermediaries in the non-banking sector who are not directly subordinated to the FINMA are regulated by self-regulating organisations. These oversee the GwG due diligence obligations and the fulfilment thereof. Within the framework of its supervision of this financial intermediary sector, the FINMA has the following responsibilities (cf. Art. 18 GwG):
- recognition of the SRO or withdrawal of recognition
- supervision of the SRO and its directly subordinated financial intermediaries
- approval of the regulations passed by the SRO as well as the amendments thereof
- monitoring the enforcement of the regulations by the SRO
To execute its aforementioned responsibilities, the FINMA may conduct on-site checks or may delegate these to an audit company. If this involves an SRO of attorneys-at-law and notaries, by contrast, the FINMA shall be obliged to delegate this task to an audit company. The latter are subject to the same confidentiality obligations as attorneys-at-law and notaries.
Finally, it should be noted that the FINMA maintains in electronic form a public list of the financial intermediaries who are not directly subordinated to the FINMA (i.e. those financial intermediaries who are members of a SRO). The data can be accessed using a call-off procedure.