I. General

1 The term “dealer” includes natural and legal persons who trade in goods and accept cash in payment (Art. 2 para. 1 let. b AMLA). Unlike financial intermediaries, dealers are not subject to any state supervision or supervision by self-regulatory organizations. Since they are not financial market players, supervision is not the responsibility of FINMA. Art. 15 AMLA is intended to ensure and verify compliance with AMLA obligations by dealers by obliging dealers to commission an audit firm to audit the dealer's compliance with the obligations under Chapter 2 of AMLA. It is confusing that the term “auditing body” was still used in the original version of Art. 15 AMLA (in force until December 31, 2022). In corporate law, an “auditing body” refers to a body within a company with special rights and duties, whose main purpose is to audit the statutory annual financial statements. Its task is thus essentially to audit the accounts. However, monitoring compliance with due diligence obligations is an activity of the regulatory audit. The term was thus replaced by “audit firm” as of January 1, 2023, and is also consistently used in this commentary. However, the adjustment was forgotten in Art. 22 AMLO, where the incorrect term “auditing body” is still used.

II. Scope of the obligation

2 Art. 15 para. 1 AMLA is explicitly linked to the scope of application of Art. 8a. This means that dealers who have to fulfill the obligations under Art. 8a AMLA are subject to the audit requirement. Accordingly, only dealers who accept more than CHF 100,000 in at least one trading transaction must commission an audit firm to carry out an audit in accordance with Art. 15 para. 1 AMLA. It is sufficient if one trading transaction exceeds the aforementioned amount. In other words, the scope of application of Art. 15 AMLA is the same as that of Art. 8a AMLA. For the scope of application of the dealer concept and the obligations, see the comments on Art. 2 para. 1 AMLA and Art. 8a AMLA.

III. Requirements for the audit and the audit firm

3 The obligation under Article 15 AMLA to appoint an audit firm applies to dealers regardless of the obligation to have the annual and, if applicable, the consolidated financial statements audited (Article 22 para. 1 AMLO; see Article 727 and Article 727a CO for ordinary and limited audits). A dealer who has both the invoice in accordance with CO and compliance with the AMLA obligations audited by the same audit firm should demand a separate engagement letter and declaration of completeness, as the AMLA audit is a separate audit subject. Audit firms that have the necessary specialist knowledge and experience can be commissioned (Art. 15 para. 2 AMLA). The audit firm itself must assess whether it is competent to carry out the audit. According to the legislator, the company or person conducting the audit (lead auditor) is competent to do so if they are licensed by the Federal Audit Oversight Authority (FAOA) or a self-regulatory organization to conduct audits under financial market laws or the AMLA (Art. 9a. AOA or Art. 24 para. 1 let. d AMLA).

4 If the dealer does not have an audit firm, the board of directors or the board of management shall commission an audit firm in accordance with Article 6 AOA to carry out the audit (Article 15, para. 2 AMLA in conjunction with Article 22, para. 2 AMLO). This duty can be delegated, but not the responsibility for it. The statutory auditors (regardless of whether or not they also perform the AMLA audit of the dealer), if required, must list the results of the AMLA audit in the audit report. The impact of violations on the financial statements (e.g. impending fines that would lead to a future outflow of funds) must be taken into account, for example by checking whether appropriate provisions have been created and whether the annual financial statements give a true and fair view.

5 The mandated audit firm must be licensed by the Federal Audit Oversight Authority (FAOA). An audit firm is licensed in accordance with Art. 6 AOA if the majority of the members of the supreme governing body and the management body are appropriately licensed; at least one-fifth of the individuals who participate in providing audit services have the appropriate license; it is ensured that all persons who direct audit services have the appropriate license and the management structure ensures that the individual mandates are sufficiently monitored (Art. 6 para. 2 AOA). In addition, according to Art. 6 para. 2 AOA, public financial auditors may also be licensed as audit firms if they meet the requirements of Art. 6 para. 1 AOA. Until December 31, 2022, it was possible to commission a natural person to carry out the audit (see Art. 15 paras. 1 and 2 AOA, Art. 5 AOA in conjunction with Art. 4 paras. 2 and 3 AOA). This was adjusted as of January 1, 2023, because it is not common or contrary to the system in the area of regulatory audit – a natural person may only provide legally required audit services on a self-employed basis if they are registered in the commercial register as a sole proprietorship and they themselves, as well as their sole proprietorship, are appropriately licensed by the supervisory authority (Art. 8 AOO).

6 Dealers must provide the audit firm with all the information and documents required for the audit (Art. 15 para. 3 AMLA). The audit firm has full discretion to request any documents and information necessary for the execution of the mandate. The audit firm is subject to professional secrecy by law, but this is overridden in the event of a reporting obligation under Art. 15 para. 2 AMLA.

IV. Scope and period of the audit

7 The audit firm shall audit compliance with the AMLA obligations applicable to the dealer to be audited and shall draw up a report on this for the attention of the audited dealer's responsible body (Art. 15 para. 4 AMLA). This includes all the due diligence requirements applicable to dealers mentioned in Art. 8a AMLA (identification of the contracting party, determination of the beneficial owner, documentation requirement and special duty of clarification) and the reporting requirement pursuant to Art. 9 para. 1^bis AMLA. Compliance with the prohibition on information (Art. 10a para. 5 AMLA) cannot be meaningfully verified.

8 The audit firm shall check whether there are any indications that the list of cash transactions is incomplete or that the applicable duties of care have not been complied with in this regard. If the list is incomplete, the firm shall request the merchant to complete it immediately; if this is no longer possible, this fact shall be included in the report. The audit firm's audit is based on the documentary evidence prepared in accordance with Art. 8a para. 1 let. c in conjunction with Art. 7 AMLA. This documentation must be designed in such a way that it can be verified by the audit firm, in such a way that all the information contained in Art. 21 para. 1-3 AMLO is visible. The documentation must be kept for at least ten years (Art. 21 para. 4 AMLO). The audit firm takes a risk-based approach to its audit, i.e. it must, at its own discretion, deepen (e.g. if there are indications of misconduct) or relax (e.g. by selecting samples from a large number of transactions in excess of CHF 100,000) certain aspects, while observing the principle of proportionality.

9 From a time perspective, the audit period for compliance with the AMLA provisions may, for practical reasons, coincide with the financial year. In exceptional cases, a shorter or longer audit period may also be chosen by the dealer's senior management or board of directors. There is no legal requirement for dealers to be audited annually. What is clear is that the duty to audit is triggered in principle by a cash transaction in excess of CHF 100,000. However, it is not clear by when the audit obligation must be fulfilled. A separate audit for each individual purchase transaction would not be practical. Accordingly, it may be difficult in practice to accuse a merchant of violating Art. 15 AMLA – in my opinion, it is unclear when this violation begins. Wyss and EXPERTsuisse are of the opinion that the audit should be carried out at the latest when the merchant would have to have an audit of the annual financial statements carried out if he were required to do so under the Swiss Code of Obligations. This would mean that, for example, the audit of a joint-stock company would have to be carried out within six months of the end of the financial year (in line with Art. 699 para. 2 CO). Even if this view is logically sound in my opinion, there is no clear legal basis for it. In my opinion, this is tricky, especially when imposing a penalty for a violation of this duty (nulla poena sine lege, Art. 1 SCC) (see OK-Nagel/Parvex, Art. 38 AMLA N. 7).

10 It must be possible to audit all cash payments for goods in excess of CHF 100,000 made during an audit period. The dealer must submit a written letter of representation. In doing so, payments that are interrelated in terms of time or economic context must be considered together (Art. 8a para. 3 AMLA), which can be difficult in practice.

V. Auditing procedures

11 The auditing company's audit procedures are divided into three audit steps: risk analysis, audit of the completeness of the documentation and audit of compliance with the due diligence and reporting obligations. There are no provisions for test purchases or other forms of monitoring the business conduct of dealers.

VI. Reporting obligation of the auditing company

12 According to Art. 9, para. 1^bis AMLA, the primary reporting obligation lies with the dealer. If a merchant fails to comply with the reporting requirement under Art. 9 para. 1^bis AMLA, the audit firm shall report the matter to the Money Laundering Reporting Office Switzerland (MROS) without delay in accordance with Art. 15 para. 4 AMLA (subsidiary reporting requirement) if it has reasonable grounds to suspect that: a criminal offence under Art. 260^ter or 305^bis SCC (a) a criminal offence under Article 260ter or 305bis SCC The audit firm also has a reporting obligation if, during the audit, it comes across new facts or itself has a reasonable suspicion without the dealer having come to this conclusion himself. In the literature, the view is put forward that the audit firm should set a short deadline for the trader who has failed to report, within which the trader can make the report himself. This approach makes sense even if it is not provided for by law, which requires the audit firm to report “without delay”.

13 The reporting requirement also applies if the dealer withdraws the audit firm's mandate after the latter becomes aware of facts that require reporting, or if the audit firm itself resigns the mandate. It should be noted that the audit firm itself has no independent obligation to report – it merely reports on behalf of the defaulting dealer, in the sense of a substitute performance, who has failed to do so in breach of duty. The audit firm is not criminally liable under Art. 37 AMLA, but the audit firm may be criminally liable under Art. 305^bis in conjunction with Art. 25 SCC). Even if the audit firm makes the report, the dealer may still be liable to prosecution, especially if the report was not made “promptly” within the meaning of Art. 9 para. 1^bis AMLA.

14 If an audit firm makes a report in good faith within the meaning of Art. 15 para. 5 AMLA, it shall not be held liable under Art. 11 para. 1 and 2 let. b AMLA under either criminal or civil law (exclusion of criminal liability and liability). The prohibition on tipping off also applies to the auditors in accordance with Art. 10a, para. 5 AMLA.

VII. Legal consequences of violating the audit requirement

15 Dealers who accept more than CHF 100,000 in cash as part of a commercial transaction without commissioning an audit firm to audit compliance with the due diligence and reporting requirements are subject to prosecution under Art. 38 AMLA. The offense begins and is simultaneously completed as soon as the audit firm should have been commissioned in accordance with Art. 15 AMLA in order to ensure a proper and timely audit. Regarding the criminal liability and other possible consequences of a violation of Art. 15 AMLA, please refer to the commentary on Art. 38 AMLA.

Bibliography

Burckhardt Peter/Hösli Andreas, Neue strafrechtliche Risiken für Händler bei Barzahlungen über CHF 100‘000, in: Jusletter vom 1.2.2016 (zit. Burckhardt/Hösli, Jusletter 1.2.2016).

Hagi Andreas Lukas/Tschabold Stephan, Kommentierung zu Art. 15, in: Kunz Peter V./Jutzi Thomas/Schären Simon (Hrsg.), Stämpflis Handkommentar zum Geldwäschereigesetz (GwG), Bundesgesetz vom 10.10.1997 über die Bekämpfung der Geldwäscherei und der Terrorismusfinanzierung, Bern 2017 (zit. SHK-Hagi/Tschabold, Art. 15 GwG).

Nagel Thomas, Der persönliche und sachliche Geltungsbereich des schweizerischen Geldwäschereigesetzes: Mit rechtsvergleichenden Hinweisen zu internationalen Standards, dem Recht der Europäischen Union und dem deutschen Recht, Zürich et al. 2020 (zit. Nagel).

Ramelet Nicolas, Kommentierung zu Art. 15, in: Hsu Peter Ch./Flühmann Daniel (Hrsg.), Basler Kommentar Geldwäschereigesetz, Basel 2021 (zit. BSK-Ramelet, Art. 15 GwG).

Wyss Ralph, Kommentierung zu Art. 15, in: Thelesklaf Daniel/Wyss Ralph/van Thiel Mark/Ordolli Stiliano (Hrsg.), Orell Füssli Kommentar zum Schweizerischen Geldwäschereigesetz mit weiteren Erlassen (GwG), 3. Aufl., Zürich 2019 (zit. OFK-Wyss, Art. 15 GwG).

Materials

Botschaft zur Änderung des Geldwäschereigesetzes vom 26.6.2019, BBl 2019 5451 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2019/1932/de, besucht am 31.8.2024 (zit. Botschaft GwG 2019).

Erläuterungsbericht zur Geldwäschereiverordnung (GwV) – Umsetzung der GAFI-Empfehlungen vom 11.11.2015, abrufbar unter https://www.newsd.admin.ch/newsd/message/attachments/41723.pdf, besucht am 31.8.2024 (zit. Erläuterungsbericht GwV 2015).

EXPERTsuisse, Ausgewählte Fragen und Antworten zu den Auswirkungen der Anpassungen des Geldwäschereigesetzes auf die Prüfung von Händlerinnen und Händlern, 23.6.2016 (zit. EXPERTsuisse).