- Introduction
Last June 2018, the Swiss Parliament has enacted two new regulations impacting the financial services providers, these are :
- the Swiss Financial Institutions Act (the « FinIA ») and
- the Swiss Financial Services Act (the « FinSA »)
In October 2018, the execution ordinances bringing additional substance and clarification to the FinIA and the FinSA have been published for consultation purposes. This consultation process will lapse in February 2019. The new Swiss regulations will enter into force on the 1st January 2020.
- New supervision regime
The main change regarding the Swiss supervision regime of financial service providers is the new requirement for individual portfolio managers and trustees (the « Portfolio Managers ») and the managers of pension schemes (the « Collective Asset Managers ») to obtain a license from the Swiss Financial Market Supervisory Authority FINMA (the « FINMA ») prior to engage in business operations.
This being said, you will find hereafter a table summarising the applicable regulations and the supervision body relevant for each financial service provider pursuant to the enactment of the new FinIA :
| Financial Service Providers | Changes | Supervision Regime |
| Banks | None | FINMA (Swiss Banking Act) |
| Securities Houses | Formerly Securities Dealers were regulated by the Stock Exchange Act | FINMA (FinIA)
(Transitional provisions : 1 year to comply with the new requirements) |
| Securities Dealers | Replaced by the new terms Securities Houses
The Stock Exchange Act will be abolished. |
— |
| Fund Managers (enter within the new category of Collective Asset Managers) | Authorization and supervision are not ruled by the Swiss Collective Investment Act (the « CISA ») but by the FinIA | FINMA (FinIA)
(Transitional provisions : 1 year to comply with the new requirements) |
| Pension scheme managers (also enter within the new category of Collective Asset Managers) | Regulations regarding their ability to manage pension schemes issued by the Occupational Pension Supervisory Commission will not apply anymore. | NEW : FINMA (FinIA)
The supervision by the local supervisory authorities (at cantonal level) and by the Occupational Pension Supervisory Commission is maintained for the investment restrictions. (Transitional provisions : 6 months to register with the FINMA and 3 years to comply with the new requirements and to request the license) |
| Fund Management Companies | Authorization and supervision are not ruled by the Swiss Collective Investment Act (the « CISA ») but by the FinIA | FINMA (FinIA)
(Transitional provisions : 1 year to comply with the new requirements) |
| FINTECH Company | New player | FINMA (Swiss Banking Act) |
| Portfolio Managers | NEW : FINMA (FinIA)
Ongoing supervision by a new supervisory body (to be created) (Transitional provisions : 6 months to register with the FINMA and 3 years to comply with the new requirements and to request the license)
|
|
| Trustees | NEW : FINMA (FinIA)
Ongoing supervision by a new supervisory body (to be created) (Transitional provisions : 6 months to register with the FINMA and 3 years to comply with the new requirements and to request the license) |
|
| Trade assayers | NEW : FINMA (FinIA)
Ongoing supervision by a new supervisory body (to be created) (Transitional provisions : 6 months to register with the FINMA and 2 years to comply with the new requirements and to request the license) |
|
| Investment Advisers | None | None |
| Distributors | The requirement to be authorised according to the CISA will no longer be applicable | None
(Transitional provisions : 1 year after the amendment to the Swiss Anti-Money Laundering Act to register with a recognised SRO). |
| Swiss representatives of foreign funds | None | CISA |
| Insurance companies and Insurance Intermediaries | None | Insurance Supervisory Act |
We will put hereafter an emphasis on some topics we consider to be of general interest.
- Portfolio Managers : authorisation requirements
We describe hereafter the requirements for individual clients’ portfolio managers and trustees (the « Portfolio Managers ») willing to start a new business activity after the 1st January 2020 (entry into force of FinIA) to obtain an authorisation from the FINMA to provide their services.
Portfolio managers and trustees (provided the latter also perform asset management activities) will fall within the scope of the prudential supervision of the FINMA (FinIA art.5) if they are deemed to exercise their activity on a professional basis, as defined in article 11 of the P-FinIO, i.e. where they :
- achieve a gross profit exceeding CHF 50’000 per year ;
- establish or maintain business relationships with more than 20 clients per year ;
- have received asset management mandates for assets exceeding CHF 5 millions; or
- operate transactions exceeding globally CHF 2 millions per year.
Collective Asset Managers are also deemed to be Portfolio Managers (subject to less stringent requirements) if they comply with all criteria provided by article 24 § 2 of the FinIA.
Portfolio Managers may choose to be organised under the following forms of legal entities : individual company, commercial company or cooperative company (FinIA 18). Registration into the companies’ register is required.
The registered office and administrative centre of the company must be located in Switzerland (FinIA 10) and the individuals responsible for the management of the company shall be domiciled in a place allowing a factual and responsible management of the company. The Portfolio Managers shall designate at least one individual domiciled in Switzerland, which shall be a member of the management body or of the body in charge of top management, monitoring and control of the company.
The management shall be composed of at least two qualified individuals (“Qualified Manager”), number which can however be reduced to only one Qualified Manager where evidence can be brought that the continuation of the company is ensured. In such cases, the measures to be adopted in case of inability or death of the unique Qualified Manager shall be disclosed to the FINMA and where such measures provide for the stepping in of a third party (outside the company), the clients must also be notified.
The entity and the individuals in charge of the administration and the management of the entity must assure an irreproachable conduct of business operations.
Are also required for the individuals in charge of the administration and management of the entity a good reputation and the requisite specialist qualifications.
Holders (or co-holders) of qualified equity interest (10%) must also enjoy a good reputation and guarantee that their influence will not have a negative impact on the Portfolio Manager solid and prudent business activity (FinIA Art. 11 § 3).
A qualified holder will nevertheless be entitled to perform management activities for the Portfolio Manager entity.
The Portfolio Managers shall employ qualified staff, with specialist qualifications in the relevant fields of activity. Dual signature is required to validly represent the Portfolio Managers.
The FINMA may require that an additional body be created to assume top management, monitoring and supervision of the Portfolio Manager activities, with a majority of members not being members of the Portfolio Manager management if:
- the annual gross profit exceeds CHF 5 millions and
- the scope and kind of activities motivate such requirement.
The Portfolio Managers will have to prove that they are subject to the supervision of a supervisory body (FinIA Art. 7 § 2) before the 01.01.2021, and be in the meantime affiliated to a self-regulatory organisation (“SRO”) (within the meaning of article 24 of the Swiss Anti-Money Laundering Act).
The Portfolio Managers will also have to be affiliated to a mediation body (FinIA Art. 16) before the 01.07.2020.
Regarding the organizational requirements, the Assets Managers will, according to article 9 of the FinIA, have to:
- adopt adequate business management rules ;
- dispose of an organization allowing them to comply with their legal obligations ;
- identify, assess, quantify, manage and monitor their risks ;
- ensure efficient internal compliance.
The Portfolio Managers shall provide a clear definition of their scope of business (including from a territorial perspective) and have adequate financial resources and organization in relation thereto (P-FinIO Art. 6).
Portfolio Managers must implement risk management and compliance functions to guarantee the compliance with legal and internal regulations (P-FinIO Art. 21).
The responsibility for risk management and compliance may be assumed by a Qualified Manager, be delegated to qualified staff members or be outsourced to an external qualified entity (FinIA Art. 21).
The individuals in charge of risk management or compliance functions are in principle not entitled to participate to the activities they have to monitor. This requirement of independence is however not applicable if the Portfolio Manager is a small entity :
- with 5 or less employees or generating an annual gross profit of maximum CHF 1,5 million ; and
- with a business model not presenting material risks.
For large Portfolio Managers, with an annual gross profit exceeding CHF 10 millions, the FINMA may require the creation of an internal audit, independent from the management (P-FinIO Art. 19 al.2).
The principles ruling the outsourcing of activities must me integrated in the company business regulations (articles of incorporation, business regulations, partnership agreements, etc.) (P-FinIO Art. 9).
More generally, the business regulations will have to be attached to the licence request to be forwarded to the FINMA (P-FinIO Art. 15).
The internal documentation shall entitle the external auditors, the supervisory body and the FINMA to have a fair understanding of the Portfolio Managers activities (P-FinIO Art. 26).
In terms of financial resources, the following requirements shall apply :
The minimum capital required amounts to CHF 100’000, totally paid up and to be maintained during the lifetime of the company (FinIA Art. 22).
Own funds shall be equivalent to one quarter (¼) of the fixed costs indicated in the last annual accounts, up to a ceiling of CHF 10 millions (FinIA Art. 23).
Are considered as fixed costs :
- staff costs ;
- exploitation costs ;
- amortization of immobilised assets ;
- costs related to value fixes, provisions and losses.
The share of staff costs exclusively linked to the operating profits or which cannot be the object of a claim may be deducted from the staff costs.
Articles 22 et 23 of the P-FinIO clarify which own funds are to be considered and which deductions can be effected.
The Portfolio Managers will also have the possibility to conclude a professional indemnity insurance, and half of the maximum insured amount can be considered as own funds, provided the insurance policy actually covers the risks of the business model.
Kindly note that existing Portfolio Managers must report to the FINMA within 6 months of the FinIA entry into force (01.07.2019) and meet the statutory requirements as well as introduce their licence request within 3 years of the entry into force of the legislation. This being said, the Portfolio Managers already operating their business will have to comply with the new code of conduct provisions of the FinSA, entering into force on the 01.01.2021 for all financial service providers.
Suggested next steps :
- Check the composition of the various bodies and that all functions are assumed by individuals complying with the new regulation’s requirements.
- Assess financial resources needs.
- Check list of the new rules to be implemented for both FinIA and FinSA (see general calendar hereafter).
- Analyse IT needs/changes.
- Draft new required internal procedures
- Review/validate internal organization and draft new business regulations.
- Prepare new requested affiliations.
- New provisions applicable to financial advisers
Although the financial advisers do not fall within the scope of the prudential supervision by the FINMA, they will nevertheless be impacted by the new regulatory provisions of the FinSA.
- First of all, the financial advisers will be required to apply for a registration into a new Financial Advisers Register as from the 1st July 2020.
The conditions to achieve such registration can be summarised as follows:
- The financial advisers must have sufficient knowledge of the code of conduct set out in the FinSA and the necessary expertise to perform their activities;
- The financial advisers must have taken a professional indemnity insurance (with a sum of insurance of CHF 500’000 per financial adviser) or provide equivalent financial guarantees;
- The financial advisers must be affiliated to a mediation body.
If financial advisers are employed by a financial services provider, the conditions set out in the paragraphs 2 and 3 hereabove may be complied with by the latter.
The Financial Advisers Register will contain information about the financial advisers, the financial services provider employing them, the function and position of the financial adviser within the organisation, the field of activity of the financial advisers, the basic training and the continuing professional development completed and the mediation body to which the financial adviser is affiliated.
- Secondly, the financial advisers will have to comply with the code of conduct applicable to all financial services providers, which rules differ according to the client’s segment. As a consequence, the financial advisers will have to categorize their clients and adapt their conduct to the relevant client’s segment.
- Finally, the financial advisers who are in breach of the code of conduct provided for in the FinSA incur criminal sanctions and radiation from the Financial Advisory Register.
- Client segmentation
The FinSA provides for (3) clients segments, with a different protection degree : the retail clients, the professional clients and the institutional clients.
According to article 4 of the P-FinSO, the segmentation of a client is applicable thereafter to the entire relationship between such client and the financial service provider.
The list of individuals or entities which are part of the various client segments is the following :
| Client segment | |
| Retail clients | Clients who are not professional clients |
| Professionnal clients |
|
| Institutional clients |
|
As of the 1st January 2021, all financial service providers will have to have completed the segmentation process of their clients, unless they decide to consider and treat all their clients as retail clients.
Before providing any financial services, financial service providers shall inform their clients, where they are not classified as retail clients and explain to them the possibility of opting in.
Any client declaration must be in written form.
Here are the possibilities of opting in or opting out :
| Client segment | Type of client | Opting-out option | Opting-in option |
| Retail clients | High-net-worth retail clients | Professional clients | |
| Private investment scheme created for high-net-worth retail clients | Professional clients
|
||
| Professional clients
|
Occupational pension schemes | Institutional clients | |
| Companies with professional treasury operations | Institutional clients | ||
| Professional clients | Public bodies with professional treasury operations | Retail clients | |
| Occupational pension schemes | Retail clients | ||
| Companies with professional treasury operations | Retail clients | ||
| Large companies | Retail clients | ||
| Private investment scheme created for high-net-worth retail clients with professional treasury operations | Retail clients | ||
| Institutional clients | Financial intermediaries | Professional clients | |
| Insurance companies | Professional clients | ||
| Foreign clients subject to a prudential supervision | Professional clients | ||
| Central banks | Professional clients | ||
| National and supranational public entities with professional treasury operations | Professional clients |
It is to be noted that the clients acting through a representative (for example a portfolio manager) may request to be included in the segment open to such representative, as the case may be, based on its technical training and experience (P-FinSO art. 4 § 4).
Duties according to the clients segment.
None of the duties listed hereafter applies to institutional clients.
The column at the end right refers to professional clients, and the prior column to the retail clients.
« D » means that the financial service provider must act upon the client’s demand
« E » means that there is an applicable exemption
« M » means that compliance is mandatory
« W » means that the client may expressly waive the obligation
| Retail | Professional | ||
| Articles 8 and 9 FinSA
Articles 6 to 10 P-FinSO Duty to provide information (standardised form, paper or sent electronically) |
Before the signing of a contract or the provision of services, the financial service providers shall notify the clients of:
|
M | W |
| Key information document (« KID ») | Where the advice is related to a financial instrument, the financial service provider shall provide a KID to the client before the subscription or the signing of a contract) provided such KID is required for the specific recommended financial instrument.
If the advice is given out of the presence of the client, the KID may be provided after the conclusion of the contract, provided the clients have approved such process (to be documented). |
M | W |
| Prospectus | Where the advice is related to a financial instrument for which a prospectus is required, the prospectus must be provided on demand. | D | W |
| Articles 15 and 16 FinSA
Documentation Art 18 P-FinSO |
The financial service providers shall document in an appropriate manner :
The documentation may be standardised. The financial service providers shall organise the documentation process so as to be able to render account to the clients of the financial services within 3 business days. |
M | W |
In case of financial advice, the financial service providers shall document :
|
M | W | |
| Rendering of account | Financial service providers shall provide their clients with a copy of the documentation mentioned in article 15 hereabove
Financial service providers shall render account of :
|
D | W |
| Article 19 P-FinSO | With the rendering of accounts, documentation related to the following topics shall be included :
The Client may also request to receive the documents generally established by the custodian bank. The periodicity of this obligations has to be convened with client. The possibility for the client to consult the requested information on line is compliant with the law, provided the data can be uploaded and stored by the client and be used in case of future need. |
M | W |
| Articles 10 to 14 FinSA
Assessment of appropriateness and suitability of the financial services |
(see item VI hereafter) | M | E |
| Articles 17 à 19 FinSA
Transparency and care in client orders |
Handling of client orders :
Best execution of client orders :
|
M | M |
| Use of clients’ financial instruments | Borrow as a counterparty or act as an agent for such transactions only if the clients have given their prior and express consent.
Short selling with the financial instruments of retail clients is prohibited. |
M | M |
| Articles 20 and 21 P-FinSO
Handling of clients’ orders
|
The handling of clients’ orders is generally operated by banks with predefined execution rules. | M | M |
Suggested next steps :
- Analyse the clients’ structure
- Decide whether the clients will be treated differently
- Clarify the type of services provided to the clients
- Adapt the required documents, for the entry into relationship with client and adapt the website
- Create the clients’ profiles
- Organise staff training regarding the rules of conduct
- Organise affiliation to a mediation body
- Organise affiliation to a supervision body
Depending upon the clients’ segment :
- Define the rules of conduct to be adopted (on a case by case basis for professional cients)
- Organise production, dispatching and storage of the required documentation
- Implement the process to assess the appropriateness and suitability of the services, depending upon the type of service provided.
- Establish the list of documents to be provided to the clients depending upon the type of products and check their availability
- Assessment of appropriateness and suitability of the financial services
As part of the rules of conduct to be implemented by the financial service providers, articles 10 to 14 of the FinSA introduce the requirement to assess the appropriateness and suitability of the financial services according to the type of financial service and the type of clients’ segment
The following types of financial services are to be considered :
Asset management : the financial service providers have received a mandate to manage in an autonomous way the assets of the client, in compliance with the investment strategy agreed upon with the client, against a management fee. The investment decision is taken by the financial service provider.
Portfolio investment advice : the investment advices take into consideration the entire portfolio of the clients. The investment decisions rest with the clients.
Instrument investment advice : the investment advices only relate to various transactions. The entire portfolio is not taken into account. The investment decisions rest with the clients.
Execution only : Mere execution of transaction orders. The clients do not receive investment advices or any recommendations.
According to article 16 of the P-FinSO, where an individual designates a representative, the latter’s knowledge and experience are considered to perform the assessment exercise.
The assessment rules can be summarised as follows:
| Financial services | ||||
| Asset management | Portfolio investment advice | Instrument investment advice | Execution only | |
| Retail Clients | Appropriateness
Client knowledge and experience : Has the client a good knowledge of the financial services offered ? Does he have a good understanding of the risks correlated with the various investment strategies ? Investment objectives : investment horizon, risk consciousness, ability and willingness to assume risks, investment finality, restrictions. Financial situation : family and professional situation, cash needs, origin and amount of regular earnings, assets, including property and current and future financial commitments. Appropriateness assessment : Has the client a good understanding of the financial service to be provided ? Is the selected investment strategy in line with the investment objectives and the financial situation of the client ? Is a particular transaction appropriate considering the whole portfolio of the client, its financial situation, its investment objectives, also under the investment risks perspective ? When assessing the appropriateness, the financial service providers may have trust in the client’s declarations, unless indicia suggest that such indications are false, especially as regards the understanding of the transaction and of its risks. Individual profile of the client has to be established, which must comprise the risk profile and the investment strategy agreed upon with the client. |
Suitability
Client knowledge and experience : Has the client a good knowledge of the financial instruments ? Does he have a good understanding of the risks correlated with the instruments Suitability assessment : are the instruments and their risks suitable considering the knowledge and experience of the clients ? |
No assessment required
The financial service providers notify their clients that they do not perform any assessment. |
|
| Professional clients | Financial service providers are entitled to assume that the professional clients have the required level of knowledge and experience and that they can financially bear the investment risks associated with the financial services provided to them.
No assessment of the appropriateness of the financial services, unless there are elements bringing doubts regarding the sufficient understanding of the services or related risks. |
Financial service providers are entitled to assume that the professional clients have the required level of knowledge and experience and that they can financially bear the investment risks associated with the instruments.
No assessment of the suitability, unless there are elements bringing doubts regarding the sufficient understanding of the transaction or related risks. |
No assessment required
The financial service providers notify their clients that they do not perform any assessment |
|
| Institutional clients | No assessment required | No assessment required | No assessment required | No assessment required |
Also to be noted the fact that the financial service providers receiving lacking information to assess the appropriateness or suitability of a service or investment have to notify their clients, prior to proceed, that they are not able to complete the assessment process.
Furthermore, if the financial service provider considers that a financial instrument is not appropriate or suitable for a client, it has to advise the client against the investment, and document the process.
Suggested next steps :
Where retail clients are concerned, draft the questionnaire to
- Establish their knowledge and experience regarding the various services and/or instruments you are providing or using;
- Assess their general financial situation;
- Define their risk appetite and their investment objectives;
- Clarify investment restrictions.
and establish their individual profile
In terms of staff qualifying as client adviser, establish a process so that he/she :
- Proceeds with the required assessment,
- Has the required knowledge regarding the type of product or service that can be considered as appropriate, given the clients profile.
All is to be documented.
Organise the continuing education of the clients advisers.
- Criminal Sanctions
Criminal sanctions are foreseen for any individual
- breaching wilfully the rules of conduct or the regulations related to the prospectus and the KID; or
- proceeding wilfully to an unauthorised offering of financial instruments.
Also to be noted that according to the FinIA, all financial institutions will be subject to criminal sanctions in case of breach of professional secrecy (similar to the banking secrecy), granting a long awaited better protection for the asset managers clients.
- General calendar
| Applicability Date | Regulations |
| 01.01.2020 | 17 – 19 FinSA : transparency and care in clients orders |
| 74 § 3 FinIA : asset managers and trustees creating a new business during the year starting the 01.01.2020 shall report immediately to the FINMA and must satisfy the requirements to obtain the licence immediately, except for (i) the obligation to formerly send the request of the licence and (ii) the affiliation to a supervisory body (article 7 § 2) which both become mandatory one year after the FINMA will have approved such supervisory body. | |
| 01.07.2020 | 77 and 95 § 3 FinSA / 107 P-FinSO and 74 FinIA and 87 P-FinIO : Affiliation to a mediation body (or within 6 month of a competent mediation body being recognised or created by the Federal Department of Finance) |
| 95 § 2 FinSA Obligation to register in the new Financial Advisers Register | |
| 74 § 2 FinIA : Service providers newly subject to a licence requirement must report to the FINMA (they will have 3 years to comply with the requirements and request the licence) | |
| 01.01.2021 | 4 FinSA / 103 P-FinSO : Clients segmentation |
| 6 FinSA / 104 P-FinSO : Sufficient knowledge for clients’ advisers | |
| 7 to 16 FinSA / 105 P-FinSO : Rules of conduct – duty to inform, to assess, to document and to report | |
| 21 to 27 FinSA / 106 P-FinSO : Organisational requirements | |
| 95 FinSA / 110 P-FinSO : End of the grace period allowing to remit a Simplified Prospectus in lieu of KID for structured products | |
| 95 FinSA / 110 P-FinSO : for the other financial instruments, obligation to remit a KID for instruments offered after the 01.01.2020. | |
| 74 FinIA : already licensed financial service providers shall comply with the FinIA requirements
|
|
| 74 FinIA / 86 P-FinIO : assets managers and trustees which were directly subject to the FINMA supervision until the 01.01.2020 as financial intermediaries within the meaning of the AML act will not be obliged to be affiliated to an SRO if they receive before the 31.12.2020, the confirmation they are subject to a supervisory body and they have forwarded to the FINMA their licence request. | |
| 01.01.2022 | 95 FinSA / 109 P-FinSO: End of the grace period allowing to remit a Simplified Prospectus in lieu of KID for property funds, transferable securities funds and other traditional investments funds. |
| 95 § 4 FinSA : requirements in terms of prospectus and KID for products offered before the entry into force of the law | |
| 01.01.2023 | 74 § 2 FinIA : financial service providers newly subject to the licence requirements must conform with the FinIA requirements and forward their licence request to the FINMA |
| Within 6 month of approval of the controlling body by the FINMA | 95 FinSA / 108 P-FinSO: Obligation to publish a prospectus for a public offer or an admission to trading request after the 01.01.2020 |
We remain of course at the disposal of our clients for any further information or for more concrete help to comply with these new regulations.
Carmela Gökok
January 2019