On account of its nature as a framework Act, the GwG obliges the self-regulating organisations to draw up regulations (Art. 25 GwG). These are intended to describe in greater detail the due diligence obligations and the obligations in cases of suspected money laundering which financial intermediaries are required to fulfil pursuant to the GwG. Furthermore, the regulations must contain provisions pertaining to:
- the admission and exclusion of financial intermediaries,
- checking adherence to the due diligence obligations and the obligations in cases of suspected money laundering, as well as
- reasonable sanctions
This consequently means the SROs are able to take account of the particular characteristics and requirements of their specific financial intermediation sectors. It is important to note, however, that they are not entirely free to decide upon the content of their regulations. Instead, they are required to take proper account of the FINMA regulatory principles.
Specifically, the FINMA provides further information about the key provisions in its Money Laundering Ordinance (Verordnung der Eidgenössischen Finanzmarktaufsicht über die Verhinderung von Geldwäscherei und Terrorismusfinanzierung – “GwV-FINMA”) when it:
- approves SRO regulations, and
- recognises SRO regulations pursuant to Art. 17 GwG as constituting minimum standards.
Nevertheless, the self-regulating organisations remain free to include deviations from the aforementioned FINMA Ordinance in their regulations.
SRO exclusion autonomy & review of tribunal decisions
The regulations of an SRO must contain provisions on the exclusion of members. Within the framework of the regulations, the reviewing of decisions to exclude members is essentially delegated to a tribunal – in general terms, recourse to ordinary legal remedies is excluded.
However, the Federal Court (“BG”) establishes the following exemptions from exclusion autonomy:
- Pursuant to the jurisprudence of the Federal Court, a restriction of exclusion autonomy [cf. ZGB 72 Para. 2] exists in the case of vocational and professional associations which operate as the relevant organisations of the respective profession [cf. BGE 131 III 97 ff., Consideration 3; BGE 123 III 193 ff., Consideration 2 lit. c];
- In BGE 131 III 97 Consideration 3.2., however, the Federal Court did not exclude further cases of restricted exclusion autonomy.
For a description of a contested decision to exclude a member, see the Ruling BGE 5A 202/2012 of 01 June 2012.
