Art. 1 Subject matter
(Art. 1 and 72 FinIA)
This Ordinance governs:
- a.
- the authorisation conditions for financial institutions;
- b.
- the duties of the financial institutions;
- c.
- the supervision of the financial institutions.
954.11
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
of 6 November 2019 (Status as of 1 March 2024)
The Swiss Federal Council,
based on the Financial Institutions Act of 15 June 20181 (FinIA),
ordains:
(Art. 1 and 72 FinIA)
This Ordinance governs:
(Art. 2 FinIA)
This Ordinance applies to financial institutions operating in or from Switzerland.
(Art. 2 para. 2 let. a FinIA)
Companies or units of a group are deemed to have business ties insofar as they provide financial services or services in the capacity of trustee for other companies or units of the same group.
(Art. 2 para. 2 let. a FinIA)
1 The following persons are deemed to have family ties with one another:
2 Family ties are deemed to exist insofar as portfolio managers manage assets or trustees manage in-house funds in favour of persons who have family ties with one another, if the portfolio managers or trustees are directly or indirectly controlled by:
3 Paragraph 2 also applies insofar as, in addition to the persons with family ties, institutions with a public or not-for-profit purpose are also beneficiaries.
(Art. 2 para. 2 let. b FinIA)
Employee participation schemes are deemed to be plans which:
(Art. 2 para. 2 let. d FinIA)
Legally regulated mandates are in particular:
(Art. 2 FinIA)
Where there are legitimate grounds for so doing, the Swiss Financial Market Supervisory Authority (FINMA) may fully or partially exempt managers of collective assets from the provisions of the FinIA and the present Ordinance if:
(Art. 4 para. 2 FinIA)
The functions of a group company are significant with respect to the activities which require authorisation if they are necessary for the continuation of important business processes, in particular in the areas:
(Art. 5 and 7 FinIA)
1 The financial institution shall submit an authorisation application to FINMA. The application shall contain all information and documents required to assess it, specifically information and documents on:
2 Insurance companies as defined in the ISA11 are exempt from the duty to obtain authorisation as a manager of collective assets.
3 Exemption from the duty to obtain authorisation as a trustee from FINMA can be granted to trustees which act exclusively as trustees for trusts which were established by the same person or in favour of the same family and which are held and monitored by a financial institution which possesses authorisation in accordance with Article 5 paragraph 1 or Article 52 paragraph 1 FinIA.
(Art. 8 para. 2 FinIA)
Changes of material significance for financial institutions in accordance with Article 8 paragraph 2 FinIA are in particular:
(Art. 5, 7 and 8 FinIA)
1 FINMA may determine the form for submission, specifically for the following documents:
2 It may designate a third party as recipient of submitted documents.
(Art. 9 FinIA)
1 Financial institutions must define their organisation in their organisational principles.
2 They must describe their area of business in factually and geographically precise terms in the principal documents. The business area and its geographical extent must be commensurate with the financial possibilities as well as with the operational organisation.
3 Financial institutions must have personnel in place who are appropriately and suitably qualified to perform their business activities.
4 Risk management must encompass all business activities and be organised in such a way that all the main risks can be identified, assessed, controlled and monitored.
(Art. 11 FinIA)
1 The application for authorisation for a new financial institution must contain in particular the following information and documentation on the persons responsible for administration and management in accordance with Article 11 paragraphs 1 and 2 FinIA as well as on the owners of a qualified participation in accordance with Article 11 paragraph 3 FinIA:
2 The envisaged activity at the financial institution as well as the nature of the intended investments must also be taken into account when assessing the good reputation, the guarantee of irreproachable business conduct and the required specialist qualifications of the persons responsible for administration and management.
3 Owners of a qualified participation must make a declaration to FINMA stating whether they hold the participation in question for their own account or on a fiduciary basis for third parties, and whether they have granted options or similar rights with respect to this participation.
4 Securities firms must submit to FINMA within 60 days of the end of the financial year a list of all persons who hold a qualified participation in them. This list shall contain details on the identity and percentage holding of all qualified participants as at the relevant closing date, as well as any changes relative to the prior-year closing date. In addition, the information and documentation set out in paragraph 1 is to be submitted for any qualified participants being reported for the first time.
5 Persons connected through business ties or in any other manner who jointly hold at least 10% of the share capital or votes of the financial institution or persons jointly significantly influencing the business activities of the financial institution in another manner are deemed to be a qualified participant in accordance with Article 11 paragraph 4 FinIA.
12 Amended by Annex 10 No II 30 of the Criminal Records Register Ordinance of 19 Oct. 2022, in force since 23 Jan. 2023 (AS 2022 698).
(Art. 14 para. 1 FinIA)
1 Tasks in accordance with Article 14 paragraph 1 FinIA are deemed delegated if financial institutions appoint a service provider to independently and permanently perform in full or in part a material task, thereby changing the circumstances underlying the authorisation.
2 Material tasks are deemed to be:
(Art. 14 para. 1 FinIA)
1 Financial institutions may delegate to third parties only tasks in accordance with Article 14 paragraph 1 FinIA which do not need to be within the decision-making remit of the body responsible for management or for governance, supervision and control.
2 Delegation must not impair the appropriateness of the operational organisation.
3 The operational organisation is no longer deemed to be appropriate if a financial institution:
(Art. 14 para. 1 FinIA)
1 The financial institutions remain responsible for the fulfilment of supervisory duties and when delegating tasks shall safeguard clients' interests.
2 They shall agree with the third party in writing or in another form demonstrable via text which tasks are to be delegated. The following in particular are to be laid down in the agreement:
3 Financial institutions shall lay down in their organisational principles the tasks delegated as well as details of the possibility of sub-delegation.
4 Delegation is to be defined such that the financial institution, its internal auditors, the audit firm, the supervisory organisation and FINMA can inspect and review the delegated task.
(Art. 15 FinIA)
1 The notification which a financial institution is required to submit to FINMA before engaging in activities abroad must contain all the information and documents needed to assess such activities, specifically:
2 Furthermore, the financial institution shall notify FINMA of:
(Art. 3 and 17 FinIA)
1 Portfolio managers and trustees are deemed to pursue their activities on a commercial basis and, within the meaning of anti-money laundering legislation, on a professional basis if they:
2 Activities for schemes and persons in accordance with Article 2 paragraph 2 letters a, b, d and e FinIA are not factored into the assessment of commerciality.
3 Paragraphs 1 and 2 do not apply to portfolio managers in accordance with Article 24 paragraph 2 FinIA.
(Art. 6 FinIA)
1 Portfolio managers also wishing to act as trustees require additional authorisation for this.
2 Trustees also wishing to act as portfolio managers require additional authorisation for this.
(Art. 7 para. 2 FinIA)
1 Portfolio managers and trustees are entitled to be subject to supervision by a supervisory organisation if their internal rules and their operational organisation ensure that the supervisory requirements are satisfied.
2 A supervisory organisation can make subjection to supervision dependent on portfolio managers and trustees being required to maintain special statutory professional confidentiality.
(Art. 8 FinIA)
1 Portfolio managers and trustees shall notify the supervisory organisation of any changes in the facts on which its authorisation is based. The supervisory organisation shall periodically forward the changes to FINMA.
2 If authorisation is required in accordance with Article 8 paragraph 2 FinIA, FINMA will as part of its assessment hear the supervisory organisation.
(Art. 9 FinIA)
1 Two authorised signatories must sign jointly. Article 20 paragraph 2 FinIA remains reserved.
2 Portfolio managers and trustees must be able to be represented by a person who has their place of residence in Switzerland. This person must be a member of the body responsible for management or of the body responsible for governance, supervision and control in accordance with paragraph 3. Article 20 paragraph 2 FinIA remains reserved.
3 With reservation as to Article 20 paragraph 2 FinIA, FINMA may require the portfolio manager or trustee to appoint a body responsible for governance, supervision and control the majority of whose members are not members of the body responsible for management if:
(Art. 19 FinIA)
1 The portfolio manager shall ensure that the assets entrusted to it for management are held in safekeeping, segregated per client, with a bank pursuant to the BankA14, a securities firm pursuant to the FinIA, a trading facility for distributed ledger technology securities (DLT trading facility) in accordance with the FinMIA15 or other institution that is subject to supervision equivalent to that in Switzerland.16
2 It shall manage the assets on the basis of authorisation given in writing or in another form demonstrable via text. The authorisation must be limited to administrative acts. If the portfolio manager is entrusted with the provision of further services which require more far-reaching authorisations, it shall document the basis of these activities.
3 Portfolio managers shall take measures to avoid a break-off of contact with clients and to prevent client relationships from becoming dormant. If a business relationship becomes dormant, the portfolio manager shall take suitable steps to ensure that dormant assets are delivered to beneficiaries.
4 Paragraph 2 applies by analogy to trustees. Moreover, trustees must, within the framework of the law applicable to the trust:
5 If the rendering of additional services increases the risks to which portfolio managers and trustees are exposed, this must be taken into account within the scope of supervision (Articles 61 and 62 FinIA).
(Art. 20 FinIA)
1 A qualified manager is deemed to satisfy the requirements for training and professional experience at the time of assuming management duties if she or he can furnish evidence of the following:
2 Where there are legitimate grounds for so doing, FINMA may grant exemptions from these requirements.
3 Portfolio managers and trustees shall engage in regular continuing professional development to maintain the skills acquired.
4 They shall take the necessary precautions to ensure the continuation of business operations in the event that the qualified manager is prevented from acting or dies. If third parties from outside the company are appointed, the clients must be informed accordingly. In all other respects, Article 14 FinIA shall apply.
(Art. 9 and 21 FinIA)
1 Portfolio managers and trustees shall set out guidelines for the basic principles of risk management and define their risk tolerance.
2 Risk management and internal control are not required to be independent of revenue-based activities if the portfolio manager or trustee:
3 The thresholds in accordance with paragraph 2 letter a must be achieved in two of three past business years or be provided for in the business planning.
4 If the portfolio manager or trustee has a body responsible for governance, supervision and control in accordance with Article 23 paragraph 3 and generates annual gross earnings of more than CHF 10 million, FINMA may also require that internal auditors who are independent of management be appointed where the nature and scope of activity so dictate.
(Art. 22 para. 1 FinIA)
1 The minimum capital requirements of companies limited by shares and of partnerships limited by shares must be met with share and participation capital, those of limited liability companies must be met with nominal capital, and those of cooperatives must be met with cooperative capital.
2 The minimum capital requirements of partnerships and sole proprietorships must be met with:
3 The capital accounts and assets of partners with unlimited liability may only be counted towards the minimum capital requirement if a declaration is provided to the effect that:
4 The declaration in accordance with paragraph 3 is irrevocable. It must be made in writing or in another form demonstrable via text and filed with the supervisory organisation.
5 FINMA may permit partnerships and sole proprietorships to provide, instead of minimum capital, collateral in the form of a bank guarantee or a cash deposit in a blocked account with a bank, said collateral being equivalent to the minimum capital in accordance with Article 22 paragraph 1 FinIA.
(Art. 23 FinIA)
1 The level of capital adequacy stipulated in Article 23 FinIA must be maintained at all times.
2 The following are fixed costs in accordance with Article 23 paragraph 2 FinIA:
3 The portion of personnel expenses which is exclusively dependent on the business result or in relation to which no legal entitlement exists is to be deducted from personnel expenses.
4 Where there are legitimate grounds for so doing, FINMA may ease requirements.
(Art. 23 FinIA)
1 Legal entities may count the following as qualifying capital:
2 Partnerships and sole proprietorships may count the following as qualifying capital:
3 Portfolio managers and trustees may also count as qualifying capital any loans granted to them, including bonds with a maturity of at least five years, if a declaration is provided to the effect that:
4 The declaration in accordance with paragraph 3 is irrevocable. It must be made in writing or in another form demonstrable via text and filed with the supervisory organisation.
(Art. 23 FinIA)
The following shall be deducted when calculating the level of capital adequacy:
(Art. 22 para. 2 and 23 FinIA)
1 Collateral is deemed to be appropriate if the applicable provisions on capital are complied with.
2 Insofar as it covers the risks entailed by the business model, professional indemnity insurance may be counted 50% towards qualifying capital.
3 FINMA shall regulate the details of professional liability insurance, in particular with regard to term, notice period, the amount of insurance cover, the professional liability risks to be covered and the reporting duties.
(Art. 9, 22 and 23 FinIA)
1 Portfolio managers and trustees are subject to the accounting regulations of the CO18. Article 957 paragraphs 2 and 3 CO are not applicable.
2 Where portfolio managers and trustees are subject to specific, more stringent accounting standards, such standards take precedence.
(Art. 9 FinIA)
Internal documentation of the portfolio managers and trustees must allow the audit firm, the supervisory organisation and FINMA to form a reliable picture of the business activities.
(Art. 24 para. 1 and 2 FinIA)
1 The following apply to calculation of the thresholds for collective investment schemes managed by the manager of collective assets in accordance with Article 24 paragraph 2 letter a FinIA:
2 The following apply to calculation of the thresholds for the assets of occupational pension schemes managed by the manager of collective assets within the meaning of Article 24 paragraph 2 letter b FinIA:
3 Threshold values in accordance with Article 24 paragraph 2 letters a and b FinIA shall not be added together.
4 FINMA regulates the details for calculating the thresholds and the leverage effect in accordance with paragraphs 1 and 2.
(Art. 24 para. 1 and 2 FinIA)
1 If a manager exceeds a threshold in accordance with Article 24 paragraph 2 FinIA, it shall notify FINMA to that effect within 10 days.
2 The manager must submit to the latter an application for authorisation pursuant to Article 24 paragraph 1 FinIA within 90 days if, during this period, they have not made changes to their business model which make a renewed exceeding of the thresholds appear unlikely.
3 If changes are made to the business model within the meaning of paragraph 2 during an ongoing authorisation procedure, the authorisation procedure will be rendered unnecessary.
(Art. 24 para. 3 FinIA)
FINMA shall grant a portfolio manager in accordance with Article 24 paragraph 2 FinIA authorisation in accordance with Article 24 paragraph 3 FinIA if:
(Art. 6 FinIA)
Managers of collective assets also wishing to act as trustees require additional authorisation for this.
19 Inserted by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
(Art. 9 FinIA)
1 Two authorised signatories must sign jointly.
2 Managers of collective assets must be able to be represented by a person who has their place of residence in Switzerland. This person must be a member of the body responsible for management or of the body responsible for governance, supervision and control.
3 The body responsible for management must comprise at least two persons.
4 Managers of collective assets must appoint a special body responsible for governance, supervision and control.
5 Where there are legitimate grounds for so doing, FINMA may allow departures from these requirements; it may grant exemptions in particular from the duty in accordance with paragraph 4 where the nature and scope of activity so dictate, in particular if the company has ten or fewer full-time positions or annual gross earnings of less than CHF 5 million.
(Art. 9 FinIA)
1 The majority of the members of the body responsible for governance, supervision and control may not be members of the body responsible for management.
2 The chair may not at the same time hold the office of chair of the body responsible for management.
3 At least one third of members must be independent of the persons who hold a qualified participation in the manager of collective assets and in companies of the same conglomerate or group. Managers of collective assets which are part of a financial group subject to consolidated supervision by FINMA are exempted.
4 Where there are legitimate grounds for so doing, FINMA may allow departures from these requirements.
(Art. 26 FinIA)
1 The receipt and transmission of orders in the name of and on behalf of clients in relation to financial instruments is deemed to be an administrative activity in accordance with Article 26 paragraph 3 FinIA which a manager of collective assets can perform within the scope of its tasks in accordance with Article 26 FinIA. Article 35 FinIA remains reserved.
2 A manager of collective assets which also offers personalised asset management in accordance with Article 6 paragraph 4 in conjunction with Article 17 paragraph 1 FinIA may not invest the investor's assets, whether in full or in part, in units of collective investment schemes that it manages, unless the client has given their general consent beforehand.
3 If the rendering of additional services increases the risks to which managers of collective assets are exposed, this must be taken into account within the scope of supervision (Articles 61 and 63 FinIA).
(Art. 14 and 27 FinIA)
1 Whether a delegation of investment decisions is deemed to have the necessary authorisation in accordance with Article 14 paragraph 1 FinIA is determined in accordance with Article 24 FinIA. Foreign managers of collective assets must be subject to authorisation and supervision which is at least equivalent.
2 Where foreign law requires an agreement on cooperation and the exchange of information with the foreign supervisory authorities, investment decisions may only be delegated to managers of collective assets abroad if such an agreement is in place between FINMA and the foreign supervisory authorities relevant for the respective investment decisions.
(Art. 9 FinIA)
1 Managers of collective assets must have an appropriately defined risk management system in place as well as an effective internal control structure to ensure in particular compliance with legal and internal provisions.
2 They shall set out guidelines for the basic principles of risk management and define their risk tolerance.
3 They will keep the functions of risk management and compliance functionally and hierarchically separate from the operational business units, in particular from the function of investment decisions (portfolio management).
4 The body responsible for the governance, supervision and control of the manager of collective assets is charged with establishing, securing and monitoring the internal control system (ICS). This body also defines risk tolerance.
5 The body responsible for management implements the corresponding requirements stipulated by the body for governance, supervision and control, it develops suitable guidelines, procedures and processes, and reports periodically to the body responsible for governance, supervision and control.
6 Paragraphs 4 and 5 do not apply to managers of collective assets which are granted an exemption in accordance with Article 37 paragraph 5.
7 If a body responsible for governance, supervision and control has been appointed in accordance with Article 37 paragraph 4, FINMA may also require that internal auditors who are independent of management be appointed where the nature and scope of activity so dictate.
8 Where there are legitimate grounds for so doing, FINMA may depart from these requirements.
9 FINMA shall regulate the details.
(Art. 28 para. 1 and 3 FinIA)
1 The minimum capital of managers of collective assets must amount to at least CHF 200,000 and be paid up in full. This amount must be maintained at all times.
2 The minimum capital requirements of companies limited by shares and of partnerships limited by shares must be met with share and participation capital, those of limited liability companies must be met with nominal capital.
3 The minimum capital requirements of partnerships must be met with:
4 The capital accounts and assets of partners with unlimited liability may only be counted towards the minimum capital requirement if a declaration is provided to the effect that:
5 The declaration in accordance with paragraph 4 is irrevocable. It must be made in writing or in another form demonstrable via text and filed with the audit firm.
6 If a manager of collective assets for foreign collective investment schemes conducts the fund business within the meaning of Article 26 paragraph 2 FinIA, FINMA can stipulate a higher minimum capital requirement.
(Art. 28 para. 2 and 3 FinIA)
1 FINMA may permit partnerships to provide, instead of minimum capital, collateral in the form of a bank guarantee or a cash deposit in a blocked account with a bank, said collateral being equivalent to the minimum capital in accordance with Article 42.
2 Where there are legitimate grounds for so doing, FINMA may stipulate a different minimum amount.
(Art. 29 FinIA)
1 The capital stipulated in Article 29 FinIA must be maintained at all times and amount to at least one quarter of the fixed costs reported in the most recent annual accounts and no more than CHF 20 million, including capital in accordance with paragraph 2.
2 Managers of collective assets must:
4 Fixed costs in accordance with paragraph 1 are:
5 The portion of personnel expenses which is exclusively dependent on the business result or in relation to which no legal entitlement exists is to be deducted from personnel expenses.
6 Where there are legitimate grounds for so doing, FINMA may ease requirements or impose stricter requirements.20
20 Amended by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
(Art. 29 FinIA)
1 Legal entities may count the following as qualifying capital:
2 Partnerships may count the following as qualifying capital:
3 Managers of collective assets may also count as qualifying capital any loans granted to them, including bonds with a maturity of at least five years, if a declaration is provided to the effect that:
4 The declaration in accordance with paragraph 3 is irrevocable. It must be made in writing or in another form demonstrable via text and filed with the audit firm.
5 Own capital in accordance with paragraphs 1 and 2 must amount to at least 50% of total capital required.
(Art. 29 FinIA)
The following shall be deducted when calculating the level of capital adequacy:
(Art. 9, 28 and 29 FinIA)
1 Managers of collective assets are subject to the accounting regulations of the CO22. Where managers of collective assets are subject to specific, more stringent accounting standards, such regulations take precedence.
2 The manager of collective assets shall submit to FINMA the annual report, the summary audit company report to the general meeting or members' general meeting and the full audit company report for the body responsible for governance, supervision and control within six months days of the end of the financial year. The manager of collective assets shall append to the annual report a list of the prescribed and available capital as at the balance sheet date.23
3 The duty to prepare a full audit company report does not apply to managers of collective assets that are granted an exemption in accordance with Article 37 paragraphs 4 and 5 from the duty to appoint a special body responsible for governance, supervision and control.24
23 Amended by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
24 Amended by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
(Art. 9 FinIA)
Internal documentation of the managers of collective assets must allow the audit firm and FINMA to form a reliable picture of the business activities.
(Art. 32 FinIA)
1 The independent management of investment funds in its own name and for the account of investors by the fund management company comprises in particular:
2 Institutions which engage solely in administration activities for externally managed SICAVs pursuant to CISA25 manage investment funds independently and as fund management companies require authorisation in accordance with Article 5 paragraph 1 in conjunction with Article 32 FinIA.
(Art. 6 FinIA)
Fund management companies also wishing to act as trustees require additional authorisation for this.
26 Inserted by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
(Art. 33 para. 1 FinIA)
The head office of the fund management company is deemed to be in Switzerland if the following conditions are met:
(Art. 9 and 33 FinIA)
1 Fund management companies shall as a rule have at least three full-time positions with authority to sign.
2 Two authorised signatories must sign jointly.
3 The body responsible for management must comprise at least two persons.
4 Fund management companies must appoint a special body responsible for governance, supervision and control.
5 Where there are legitimate grounds for so doing, FINMA may allow relaxations of these requirements or it may impose more stringent requirements.
(Art. 9 and 33 FinIA)
1 The body responsible for governance, supervision and control must comprise at least three members.
2 The majority of the members of this body may not also be members of the body responsible for management.
3 The chair may not at the same time hold the office of chair of the body responsible for management.
4 At least one third of members must be independent of the persons who hold a qualified participation in the fund management company and in companies of the same group. Fund management companies which are part of a financial group subject to consolidated supervision by FINMA are exempted.
5 Where there are legitimate grounds for so doing, FINMA may allow relaxations of these requirements or it may impose more stringent requirements.
(Art. 33 para. 3 FinIA)
1 Simultaneous membership of the body responsible for governance, supervision and control of the fund management company and that of the custodian bank is permitted.
2 Simultaneous membership of the body responsible for management of the fund management company and that of the custodian bank is not permitted.
3 The majority of the members of the body responsible for governance, supervision and control of the fund management company must be independent of the persons at the custodian bank who are tasked with the duties in accordance with Article 73 CISA28. Persons at the custodian bank at management level tasked with duties in accordance with Article 73 CISA are not deemed to be independent.
4 None of the authorised signatories of the fund management company may at the same time be responsible at the custodian bank for duties in accordance with Article 73 CISA.
(Art. 33 para. 4 FinIA)
1 In addition to the tasks specified in Articles 32 and 33 paragraph 4 FinIA as well as in accordance with Article 49, fund business specifically entails:
2 The fund management company may only perform these activities and any further services in accordance with Article 34 FinIA if its articles of association so provide.
3 Article 26 paragraph 2 FinIA applies by analogy to the conduct of fund business for foreign collective investment schemes.
(Art. 34 FinIA)
1 Fund management companies shall keep their own assets separate from managed assets at all times.
2 They shall ensure that the valuation of investments, portfolio management and trading and settlement are kept separate both functionally and in terms of personnel.
3 A fund management company which also offers personalised asset management in accordance with Article 6 paragraph 3 in conjunction with Article 17 paragraph 1 FinIA may not invest the investor's assets, whether in full or in part, in units of collective investment schemes that it manages, unless the client has given their general consent beforehand.
4 Where there are legitimate grounds for so doing, FINMA may allow exemptions or it may order the separation of further functions.
(Art. 14 and 35 FinIA)
1 Whether a delegation of investment decisions is deemed to have the necessary authorisation in accordance with Article 14 paragraph 1 FinIA is determined in accordance with Article 24 FinIA. Foreign managers of collective assets must be subject to authorisation and supervision which is at least equivalent.
2 Where foreign law requires an agreement on cooperation and the exchange of information with the foreign supervisory authorities, investment decisions may only be delegated to managers of collective assets abroad if such an agreement is in place between FINMA and the foreign supervisory authorities relevant for the respective investment decisions.
(Art. 9 FinIA)
1 Fund management companies must have an appropriately defined risk management system in place as well as an effective internal control structure to ensure in particular compliance with legal and internal provisions.
2 They shall set out guidelines for the basic principles of risk management and define their risk tolerance.
3 They will keep the functions of risk management and compliance functionally and hierarchically separate from the operational business units, in particular from portfolio management.
4 The body responsible for the governance, supervision and control of the fund management company is charged with establishing, securing and monitoring the ICS. This body also defines risk tolerance.
5 The body responsible for management implements the corresponding requirements stipulated by the body for governance, supervision and control, it develops suitable guidelines, procedures and processes, and reports at appropriate intervals to the body responsible for governance, supervision and control.
6 Where the nature and scope of activity so justify, FINMA may require the appointment of internal auditors who are independent of management.
7 Where there are legitimate grounds for so doing, it may depart from these requirements.
8 It shall regulate the details.
(Art. 36 FinIA)
The minimum capital of fund management companies must amount to at least CHF 1 million and be paid up in full. This amount must be maintained at all times.
(Art. 37 FinIA)
1 The level of capital adequacy stipulated in Article 37 FinIA must be maintained at all times. They must amount to no more than CHF 20 million, including the capital in accordance with paragraph 5.
2 They will be calculated as follows in percentages of the total assets of the collective investment schemes managed by the fund management company:
3 Where the fund management company renders further services in accordance with Article 34 FinIA, the operational risks arising from such transactions are calculated using the basic indicator approach as defined in Article 92 of the Capital Adequacy Ordinance of 1 June 201229 (CAO).
4 If the fund management company is entrusted with the administration and portfolio management of the assets of a SICAV, its total assets must be included in the calculation of capital in accordance with paragraph 2.
5 If the fund management company is solely entrusted with the administration of a SICAV, it must hold additional capital of 0.01% of the total assets of the SICAV.
(Art. 37 FinIA)
1 Fund management companies may count the following as qualifying capital:
2 Fund management companies may also count as qualifying capital any loans granted to them, including bonds with a maturity of at least five years, if a declaration is provided to the effect that:
3 The declaration in accordance with paragraph 2 is irrevocable. It must be made in writing or in another form demonstrable via text and filed with the audit firm.
4 Capital in accordance with paragraph 1 must amount to at least 50% of total capital required.
(Art. 37 FinIA)
The following shall be deducted when calculating the level of capital adequacy:
(Art. 9, 33, 36 and 37 FinIA)
1 Fund management companies are subject to the accounting regulations of the CO30. Where fund management companies are subject to specific, more stringent accounting standards, such regulations take precedence.
2 The fund management company shall submit to FINMA the annual report, the summary audit company report to the general meeting and the full audit company report for the body responsible for governance, supervision and control within six months of the end of the financial year. The fund management company shall append to the annual report a list of the prescribed and available capital as at the balance sheet date.31
31 Amended by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
(Art. 9 and 33 FinIA)
Internal documentation of the fund management companies must allow the audit firm and FINMA to form a reliable picture of the business activities.
(Art. 3 and 41 FinIA)
1 Securities firms within the meaning of Article 41 letter a FinIA are deemed to pursue their activities on a commercial basis if they directly or indirectly manage accounts or hold securities in safekeeping for more than 20 clients.
2 The following are not deemed to be clients within the meaning of Article 41 letter a FinIA:
3 Activities for schemes and persons in accordance with Article 2 paragraph 2 letters a, b, d and e FinIA are not factored into the assessment of commerciality.
4 The proper functioning of the financial market is deemed potentially jeopardised within the meaning of Article 41 letter b item 1 FinIA if the total volume of executed trades in securities exceeds CHF 5 billion per calendar year in Switzerland.
5 Any party admitted as a direct participant of a trading venue is deemed to be operating as a member of a trading venue within the meaning of Article 41 letter b item 2 FinIA.
6 A securities firm shall publicly quote prices within the meaning of Article 41 letter c FinIA if the prices according to Article 3 letters g and h FinSA34 are part of an offer to the public. Offers to schemes and persons in accordance with paragraphs 2 and 3 are not deemed public.
7 Fund management companies are not deemed to be securities firms.
(Art. 9 FinIA)
1 Securities firms must be able to be represented by a person who has their place of residence in Switzerland. This person must be a member of the body responsible for management or of the body responsible for governance, supervision and control.
2 The body responsible for management must comprise at least two persons.
3 Firms trading for the account of clients and firms acting as market makers within the meaning of Article 41 letters a and c FinIA must appoint a special body responsible for governance, supervision and control. Its members may not be members of the body responsible for management.
4 Where there are legitimate grounds for so doing, FINMA may allow relaxations of these requirements or it may impose more stringent requirements.
(Art. 44 FinIA)
1 Within the frame of their tasks in accordance with Article 44 FinIA, securities firms shall ensure an effective internal separation between the functions of trading, asset management and settlement. Where there are legitimate grounds for so doing, FINMA may allow exemptions or it may order the separation of further functions.
2 If they do not operate primarily in the financial sector, firms trading for the account of clients and firms acting as market makers within the meaning of Article 41 letters a and c FinIA must keep securities trading activities legally separate.
3 In all other respects, Article 14 applies.
(Art. 9 FinIA)
1 Securities firms must have an appropriately defined risk management system in place as well as an effective internal control structure to ensure in particular compliance with legal and internal provisions.
2 They shall set out guidelines for the basic principles of risk management and define their risk tolerance.
3 They will keep the functions of risk management and compliance functionally and hierarchically separate from the operational business units, in particular from the function of trading.
4 Firms trading for the account of clients and firms acting as market makers within the meaning of Article 41 letters a and c FinIA shall appoint internal auditors who are independent of management. Internal auditors must be provided with sufficient resources and have unlimited audit rights.
5 Where there are legitimate grounds for so doing, FINMA may allow relaxations of these requirements or it may impose more stringent requirements.
(Art. 45 FinIA)
1 The minimum capital of securities firms must amount to at least CHF 1.5 million and be paid up in full. This amount must be maintained at all times.
2 In the case of companies formed using a contribution in kind, the value of the assets contributed and the extent of liabilities must be verified by a licensed audit firm. This also applies to the conversion of an existing company into a securities firm.
3 In the case of securities firms in the form of a partnership, capital is deemed to be:
4 Assets in accordance with paragraph 3 may only be counted towards the minimum capital requirement if a declaration is provided to the effect that:
5 The declaration in accordance with paragraph 4 is irrevocable. It must be made in writing or in another form demonstrable via text and filed with the audit firm.
6 FINMA may allow securities firms in the form of a partnership to provide, instead of minimum capital in accordance with paragraphs 3 and 4, collateral of at least CHF 1.5 million, for example in the form of a bank guarantee or a cash deposit in a blocked account with a bank.
7 Where there are legitimate grounds for so doing, FINMA can stipulate a higher minimum capital requirement.
(Art. 46 FinIA)
1 Securities firms which themselves do not hold accounts in accordance with Article 44 paragraph 1 letter a FinIA must maintain at all times capital amounting to at least one quarter of the fixed costs reported in the most recent annual accounts and no more than CHF 20 million.
2 Fixed costs are deemed to be:
3 The portion of personnel expenses which is exclusively dependent on the business result or in relation to which no legal entitlement exists is to be deducted from personnel expenses.
4 Securities firms which themselves hold accounts in accordance with Article 44 paragraph 1 letter a FinIA must comply with the provisions of the CAO35.
(Art. 46 FinIA)
1 Securities firms may include the following as capital in accordance with Article 70 paragraphs 1 to 3:
2 The capital under paragraph 1 letters a to c can be included in full.
3 70% of the quarterly profits may be included after deducting the estimated profit distribution, subject to the existence of a complete income statement in accordance with FINMA's implementing provisions based on Article 42 of the Banking Ordinance of 30 April 201437 or of a complete income statement in accordance with an international standard recognised by FINMA, even if the income statement has not been audited. Where justified, FINMA can require an attestation.
4 The following must be deducted in full from the eligible capital under paragraph 1 letters a to d:
5 If the capital under paragraph 1 letters a to d exceeds CHF 1.5 million after the deductions under paragraph 4, 40% of the subordinated bonds may be included for the excess amount.
36 Inserted by No I 7 of the O of 18 June 2021 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 400).
(Art. 46 FinIA)
1 Securities firms which themselves do not hold accounts in accordance with Article 44 paragraph 1 letter a FinIA must invest their resources such that sufficient liquidity is guaranteed at all times.
2 Securities firms which themselves hold accounts in accordance with Article 44 paragraph 1 letter a FinIA must comply with the provisions of the Liquidity Ordinance of 30 November 201238.
(Art. 9 FinIA)
Internal documentation of the securities firms must allow the audit firm and FINMA to form a reliable picture of the business activities.
(Art. 50 FinIA)
1 The securities firm must keep a record of all orders received by it and all transactions in securities executed by it.
2 The record-keeping duty also applies to orders and transactions in derivatives whose underlying instruments are securities admitted to trading on a trading venue or DLT trading facility40.
3 It applies not only to transactions for own account, but also to transactions executed on behalf of clients.
4 FINMA shall regulate which information is necessary and what form it is to be recorded in.
40 Term in accordance with No I 7 of the O of 18 June 2021 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 400). This amendment has been taken into account only in the provisions mentioned in the AS.
(Art. 51 FinIA)
1 The securities firm shall report all transactions it executes involving securities admitted to trading on a trading venue or DLT trading facility. In particular, the following must be reported:
2 The reporting duty also applies to transactions in derivatives whose underlying instruments are securities admitted to trading on a trading venue or DLT trading facility.
3 It applies not only to transactions for own account, but also to transactions executed on behalf of clients.
4 The following transactions executed abroad do not have to be reported:
5 Third parties may be involved in reporting.
(Art. 52 para. 1 FinIA)
1 A foreign financial institution is any company organised in accordance with foreign legislation and which:
2 If the foreign financial institution is effectively managed from Switzerland or if it executes its transactions exclusively or predominantly in or from Switzerland, it must be organised in accordance with Swiss legislation and be subject to the provisions governing domestic financial institutions.42
42 The correction of 26 Aug. 2022 concerns the French text only (AS 2022 470).
(Art. 52 para. 1 and 53 FinIA)
1 The foreign financial institution must have:
2 The branch must:
3 The foreign financial institution may only apply for entry of the branch in the commercial register when FINMA has granted said financial institution authorisation to establish the branch.
(Art. 52 para. 1 and 53 FinIA)
1 If a foreign financial institution establishes multiple branches in Switzerland, it must:
2 These branches must jointly meet the conditions of the FinIA and the present Ordinance. An audit report is sufficient.
(Art. 52 para. 1 and 53 FinIA)
1 Branches may draw up their annual and interim accounts in accordance with the provisions which apply to the foreign financial institution, provided they satisfy international standards of accounting.
2 Claims and liabilities must be stated separately:
3 Paragraph 2 also applies to off-balance-sheet business.
4 A branch shall send its annual and interim accounts:
5 Publication is not required.
(Art. 52 para. 1 and 53 FinIA)
1 The audit firm shall send its audit report:
2 It shall provide a copy to the branch manager responsible.
3 The branch will send the copy of the audit report to the unit of the foreign financial institution which is responsible for the business activities of the branch.
(Art. 52 para. 1 and 53 FinIA)
The foreign financial institution shall obtain the approval of FINMA before closing a branch.
44 Amended by No I 7 of the O of 18 June 2021 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 400).
(Art. 58 para. 1 and 2 and 59 FinIA)
1 The representation of a foreign financial institution that provides financial services in accordance with Article 3 letter c of the FinSA45 must:
2 The prohibition on establishing a representation of a foreign fund management company in accordance with Article 58 paragraph 2 of the FinIA46 applies exclusively to the representation's activities in relation to the administration and management of investment funds.
3 If a foreign financial institution establishes two or more representations in Switzerland, it must obtain authorisation for each representation.47
4 The foreign financial institution must obtain approval from FINMA before closing a representation.48
47 Inserted by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
48 Inserted by Annex No 8 of the O of 31 Jan. 2024, in force since 1 March 2024 (AS 2024 73).
(Art. 61 para. 1 and 2 FinIA)
1 For domestic portfolio managers and trustees which form part of a financial group FINMA can provide that ongoing supervision is performed exclusively within the framework of group supervision. This is conditional on the group company being closely integrated into the risk management, internal control and internal auditing structures of the financial group.
2 FINMA shall publish a list of the group companies monitored by it in accordance with paragraph 1.
(Art. 61 para. 2 and 62 FinIA)
1 The supervisory organisation shall verify on an ongoing basis whether the entities under its supervision specifically:
2 FINMA shall provide the supervisory organisations with guidelines for auditing and supervision. In particular, it shall set down for the supervisory organisations a system of risk assessment as well as minimum requirements to be met by the supervision concept. It shall consult with the supervisory organisations beforehand.
3 Audit actions and their findings shall be recorded in audit reports. Audit reports shall be published in an official language. Exemptions through audit firms in accordance with Article 43k FINMASA52 require the consent of the supervisory organisation.
4 If the supervisory organisation supervises a financial institution whose activity requires a higher authorisation level on exceeding thresholds, the supervisory organisation will monitor compliance with these thresholds and notify FINMA and the financial if they are exceeded.
5 The issuance of rulings is reserved to FINMA. FINMA shall intervene in the ongoing supervision by the supervisory organisation if this is necessary to enforce the financial market acts in accordance with Article 1 paragraph 1 FINMASA.
6 If managers of collective assets or fund management companies act as trustees, FINMA shall exercise day-to-day supervision over their activities. The same audit firm shall be appointed auditor as for activities as a manager of collective assets or fund management company under Article 63 paragraph 1 FinIA.53
(Art. 5 and 62 FinIA)
With respect to the supervision of portfolio managers and trustees, FINMA and the supervisory organisations will coordinate their supervisory activities in order to avoid duplication.
(Art. 62 para. 1 FinIA)
Where the supervisory organisation does not itself conduct the audit of supervised entities, it will ensure that:
(Art. 62 para. 2 and 3 FinIA)
1 When defining the audit frequency and the intensity of supervision, the supervisory organisation shall be guided by the risks associated with the activity of those supervised and the risks associated with their organisation.
2 In years in which no regular audit takes place, the supervisory authority shall collect standardised data on the risks associated with those supervised.
3 It shall assess the self-declared data collected and take further measures where necessary.
4 FINMA shall set down for, and in consultation with, the supervisory organisation guidelines for conducting an assessment in accordance with paragraphs 1-3.
(Art. 61 para. 3 and 63 FinIA)
1 The audit firm shall verify whether the entities under its supervision specifically:
2 Supervised entities for which the audit firm submits an annual risk analysis are exempted from the duty to report on their business activity's compliance in accordance with Article 63 paragraph 3 FinIA.
(Art. 63 FinIA)
The audit firms of supervised entities which cooperate in accordance with Article 14, 27 or 35 FinIA must themselves cooperate closely.
(Art. 73 FinIA)
The repeal and amendment of other legislative instruments are set out in the Annex.
(Art. 74 FinIA)
1 Portfolio managers and trustees which until entry into force of the FinIA were supervised by FINMA as financial intermediaries directly subordinated to it pursuant to the AMLA59 are no longer required to be affiliated to a self-regulatory organisation in accordance with Article 24 AMLA if, within one year of entry into force of the FinIA, they:
2 They shall submit a report on their business activity's compliance with the provisions of the AMLA:
(Art. 74 FinIA)
1 Article 5 paragraph 2 FinIA is not applicable to financial institutions which on entry into force of the FinIA are already entered in the commercial register.
2 Financial institutions which provide services in accordance with the FinSA60 must be affiliated to the ombudsman's office within six months of the Federal Department of Finance recognising or establishing for them an ombudsman's office in accordance with Article 84 FinSA. The period is deemed met on submission of the application.
3 Financial institutions that have their registered office abroad and by reason of a branch or representation in Switzerland already hold authorisation are not required to submit a new application for authorisation. They must satisfy the legal requirements within one year of entry into force.
4 Financial institutions that have their registered office abroad and by reason of a branch or representation in Switzerland are newly required to obtain authorisation pursuant to the FinIA shall report to FINMA within six months of entry into force. They must satisfy the legal requirements and submit an application for authorisation within three years of entry into force. They may continue their activities until a decision on authorisation is made.
5 Article 77 paragraph 3 is not applicable to branches which on entry into force of the FinIA are already entered in the commercial register.
6 Exemptions granted by FINMA based on Article 18 paragraph 3 CISA61 in the version of 28 September 201262 to managers of collective investment schemes remain valid under Article 7 of the present Ordinance.
This Ordinance enters into force on 1 January 2020.
(Art. 91)