Duty of Subordination

I. Principle

 

Pursuant to the Anti-Money Laundering Act (AMLA), persons or companies active as financial intermediaries with registered offices or branch establishments in Switzerland must be affiliated to a self-regulatory organisation or authorised by the Federal Financial Market Supervisory Authority (FINMA).

 

II. Financial intermediaries subject to special statutory supervision (Art. 2 Para. 2 AMLA)

 

Financial intermediaries subject to special statutory supervision (Art. 2 Para. 2 AMLA ) are supervised directly by FINMA. These are: 

  • Banks in accordance with the Bank Act of 8 November 1934;
 
  • Funds managers which manage investment accounts and offer or distribute shares in collective capital investment schemes;
  • Investment companies with variable capital, limited partnerships for collective capital investments, investment companies with fixed capital and asset managers as defined by the Collective Capital Investment Act of 23 June 2006, insofar as they offer or distribute shares in collective capital investment schemes;
  • Insurance companies pursuant to the Insurance Supervision Act of 17 December 2004, which operate direct life insurance schemes or offer or distribute shares in collective capital investment schemes;
  • Stockbrokers pursuant to the Stock Exchange Act of 24 March 1995;
  • Gaming houses pursuant to the Federal Gaming Act of 18 December 1998.

  

III. Other financial intermediaries (active in the parabanking sector) (Art. 2 Para. 3 AMLA):

 

In contrast to the above mentioned financial intermediaries subject to special statutory supervision (Art. 2 Para. 2 AMLA ), other financial intermediaries (Art. 2 Para. 3 AMLA; so-called "alternative financial sector" or "parabanking sector") may choose whether they wish to be supervised directly by FINMA, by submitting an application for authorisation, or join the VQF SRO. Financial intermediaries active in the alternative financial (parabanking) sector are (see Art. 2 Para. 3 AMLA ):

 

"Persons who in a professional capacity accept or retain external assets or help to invest or transfer same; especially persons who:

a.

 operate credit businesses (namely by means of consumer or mortgage loans, factoring, trade financing or finance leasing);

b.

provide monetary transaction services, namely undertake electronic transfers on behalf of third parties or issue or administer payment instruments such as credit cards and travellers cheques;

c.

trade in bank notes and coins, money market instruments, foreign currencies, precious metals, commodities and securities (bonds and uncertificated securities) as well as their derivatives, for their own or foreign account;
d. ...

e.

manage assets;

f.

place investments as investment advisers;

g.

retain or administer securities."

 

The way in which the above mentioned article is to be interpreted, i.e. whether in an individual case an activity is subject to authorisation and affiliation pursuant to Art. 2 Para. 3 AMLA, is explained in Circular 2011/1 on Financial Intermediation under the Anti-Money Laundering Act containing the implementing provisions for the Ordinance on the Professional Practice of Financial Intermediation (VBF).

 

In addition to this, duty of authorisation and affiliation pursuant to Art. 2 Para. 3 AMLA only exists when the financial intermediary activity in question is exercised professionally. Whether or not a financial intermediary activity is considered to be exercised professionally is determined in accordance with the criteria and limits of professional activity as defined in the "Ordinance on Combating Money Laundring and Terrorist Financing Anti-Money Laundering Ordinance (GwV)". If a financial intermediary meets at least one of the criteria for professional activity as defined by GwV:

  • The financial intermediary must be affiliated to a self-regulatory organisation (e.g. VQF SRO) or must have submitted an application for approval to FINMA within 2 months, otherwise the activity is illegal.
  • In addition to this, immediate compliance with duties of due diligence pursuant to the AMLA is required. 
  • Until the financial intermediary is affiliated to a self-regulatory organisation (or receives authorisation from FINMA) no new business relationships subject to the AMLA may be entered into and in the case of existing business relationships no transactions may be undertaken which are not absolutely essential for the preservation of assets (Art. 11 Paras. 1 and 2 GwV).

 

The following applies in the case of financial intermediaries who wish to join a SRO but already illegally exercised professional financial intermediary activity, i.e. in violation of the two month period pursuant to Art. 11 Para. 1 Letter b GwV (late admission):

The VQF SRO is obliged to report such cases to FINMA (FINMA Circular 2008/17 Exchange of Information FINMA/SRO). Until membership is granted, Financial intermediaries must not perform any actions that go further. On submitting the application for admission the financial intermediary must confirm to the SRO in writing that the illegal activity has ceased. If necessary the VQF SRO may suspend the application for admission until such confirmation has been received. 

 

IV. Persons exempt (Art. 2 Para. 4 AMLA)

The persons named in Art. 2 Para. 4 AMLA are exempt from the scope of application of the AMLA.


 

 

Please note that only the German version is legally binding.