I. Purpose and structure

1 Art. 27 AMLA governs the exchange of information between official and non-official (supervisory) function holders within the framework of the Anti-Money Laundering Act. This provision is necessary to ensure an effective supervisory structure, since domestic administrative assistance under Art. 29 AMLA is only applicable to authorities. It should be noted that the supervisory organizations that operate an SRO in association also fall within the personal scope of application of Art. 27 AMLA.

2 Para. 1 defines the basic principle of the exchange of information between FINMA and the SRO and between the SROs themselves: “The self-regulatory organizations and FINMA may exchange all information and documents between themselves that they require to fulfill their task”.

3 Para. 2 specifies Art. 26 para. 2 AMLA with regard to the immediate reporting obligations of the SRO to FINMA regarding changes in membership and also regulates other events that trigger an immediate reporting obligation to FINMA. These reporting requirements were specified in detail in FINMA Circular 2008/17 (formerly AMLA Control Authority Circular 2006/1).

4 para. 3 imposes a periodic reporting requirement on the SRO vis-à-vis FINMA, in that the SRO must report to FINMA at least once a year “on its activities under this Act” and “a list of the sanction decisions issued during the reporting period”.

5 Para. 4 requires the SRO to report to the Reporting Office for Money Laundering (MROS) any facts that a financial intermediary under its supervision should have reported; para. 5 stipulates the subsidiarity of this reporting requirement, since it no longer applies if the financial intermediary has already made the report itself.

II. General exchange of information between SRO and FINMA (para. 1)

6 The original one-sided duty of disclosure of the SRO to the MLCA, as provided for in aArt. 19 and aArt. 27 AMLA, was replaced by the principle of information exchange with the revision that came into force on January 1, 2009. This exchange takes place both between FINMA and the SRO and between the SROs themselves. The legislator recognized that a mutual exchange of information between all (supervisory) officials is more in line with practical requirements.

7 The legislator is thus creating the necessary legal basis for the exchange of information not accessible to the public between FINMA and the SRO, as well as between the SROs themselves. Art. 27 para. 1 AMLA thus not only supplements the domestic administrative assistance under Art. 29 AMLA for non-official (supervisory) functionaries, but also addresses the legal hurdles that stand in the way of the transmission or processing of information, such as those in criminal or data protection law.

8 FINMA and the SROs can act as both recipients and transmitters of “information” or “details and documents”. The term “information” or “details and documents” is not defined in more detail in Art. 27 para. 1 AMLA. However, according to the view presented here, one should assume a broad definition that includes both oral and written information as well as the disclosure of documents, files and other records of any kind.

9 Restrictions therefore do not arise from the specific definition of these terms, but rather from the necessary connection with the fulfillment of the tasks (principle of purpose limitation): The exchange of information is only permissible if the information is relevant for the fulfillment of the tasks of FINMA and the SRO in the individual case. Due to the extensive tasks and competencies of both the SRO and FINMA, a very comprehensive transfer of information will probably be permissible.

10 In contrast to the unilateral information obligations of the SROs to FINMA as set out in paras. 2 and 3, Art. 27 para. 1 AMLA is formulated as an optional provision. This means that there is a right to exchange information, but no obligation or requirement for further coordination of supervisory activities. However, a general duty to provide information may arise in the sense that withholding essential information could contradict the objectives of financial market supervision in accordance with Art. 4 FINMASA. It should also be noted that the SROs are considered “supervised entities” within the meaning of Art. 3 let. a FINMASA and are therefore subject to the disclosure and reporting obligations to FINMA in accordance with Art. 29 FINMASA. However, these obligations apply only in relation to FINMA and not in relation to other SROs.

III. Immediate duty of the SRO to inform FINMA (para. 2)

11 Art. 27 para. 2 AMLA lists the events that an SRO must report to FINMA without delay: terminations of membership (a), decisions to refuse affiliation (b), exclusion decisions and the reasons for them (c) and the opening of sanction proceedings that may end in exclusion (d). This list is presented as exhaustive. From the legislator's point of view, it is necessary that FINMA be informed immediately of the matters mentioned in Para. 2 in order to keep up to date on important decisions and proceedings of the SRO and to be able to intervene in good time if necessary.

12 Based on Article 26 AMLA, SROs are obliged to maintain lists of affiliated financial intermediaries and persons who have been refused membership and to notify FINMA of any changes. FINMA Circular 2008/17 (formerly AMLA Control Authority Circular 2006/1) specifies this provision and stipulates that these lists must be submitted to FINMA in aggregated form on a quarterly basis. In addition, individual changes in membership and rejected applicants must be reported immediately. Art. 27, para. 2 AMLA thus creates the legal basis for the SROs' immediate reporting obligations to FINMA in the event of changes in membership in the form of resignations and exclusions, as well as in the event of refusal of affiliation, and thus specifies the obligation to transmit information in accordance with Art. 26, para. 2 AMLA.

13 Accordingly, the termination of membership must be reported immediately after the membership has ended if the SRO knows or must assume that the terminating member continues to pursue a professional activity. The letter of termination must be enclosed with the report. The SRO shall report exclusion decisions to FINMA immediately as soon as the first-instance decision has been issued, provided that a possible appeal has been withdrawn, or after the first-instance decision has become legally binding or the arbitration court ruling in all other cases. The reasons for the decision must be enclosed with the report if available. If the SRO refuses to admit an applicant, it shall notify FINMA immediately after the first-instance decision has been issued, enclosing the reasons if available. If the SRO knows or must assume that a financial intermediary to which affiliation has been refused is or was operating in violation of Art. 11 para. 1 let. b AMLO, it shall report this to FINMA as part of the notification mentioned in the previous sentence, providing all relevant information known to the SRO.

14 Changes to the inventory in the form of new admissions must also be reported to FINMA immediately in certain cases in accordance with FINMA Circular 2008/17. The SRO is obliged to inform FINMA immediately after a new financial intermediary has joined if it knows or must assume on the basis of the circumstances that the latter has violated the obligations under Art. 11, para. 1, let. b AMLO. Such a violation has occurred if the financial intermediary has failed to apply for admission to an SRO within two months of commencing its professional activity. Since this constellation does not fall within the scope of the immediate reporting obligations pursuant to Article 27, para. 2 AMLA, the legal basis for this arises from the general duty of the SRO to provide information and report to FINMA pursuant to Article 29 FINMASA.

15 The immediate reporting requirement in the event of a withdrawn affiliation application is also governed by FINMA Circular 2008/17. The legal basis for this is also to be found in Art. 29 FINMASA and not in Art. 27 para. 2 AMLA. In such cases, the reasons for withdrawal given to the SRO must be forwarded to FINMA. Should the SRO become aware or have reason to believe that a financial intermediary who has withdrawn their application for affiliation is violating or has violated Art. 11, Para. 1, lit. b AMLO, it must report this to FINMA, providing all relevant information known to it.

16 FINMA Circular 2008/17 does not contain any provisions on the SROs' duty to report immediately when sanction proceedings are initiated that could result in exclusion; however, this obligation is explicitly set out in Art. 27, para. 2, let. d AMLA. However, this provision is of limited practical significance, since the financial intermediary remains a member of the SRO and subject to its supervision until the legally binding sanction decision and a possible exclusion.

IV. SROs' periodic reporting obligation to FINMA (para. 3)

17 According to Art. 27 para. 3 AMLA, the SROs are obliged to transmit to FINMA at least once a year a report on their activity in the area of the Anti-Money Laundering Act, as well as a list of the sanction decisions issued during the reporting period. This reporting is one of the tools that FINMA uses to fulfil its supervisory duties with respect to the SROs in accordance with Art. 18 para. 1 AMLA and to verify ongoing compliance with the SRO's recognition requirements in accordance with Art. 24 para. 1 AMLA.

18 The structure and form of the report are specified by FINMA. In recent years, FINMA's continuously expanded digital platforms have significantly facilitated and promoted the electronic transmission of data. Therefore, the template from the time of the Control Authority's supervision was replaced by a form on FINMA's electronic transmission platform.

19 In addition to this formalized reporting requirement, further supervisory measures by FINMA of the SROs have become established in practical terms: depending on FINMA's internal risk classification of the SRO, it is audited once a year, or every two or three years, as part of on-site inspections. In addition, regular supervisory discussions take place with the SRO. FINMA and the SRO also exchange information at the annual AMLA conference organized by FINMA and at the SRO forum.

V. SRO reporting duty to MROS (para. 4 and 5)

1. Reporting duty (para. 4)

20 SROs are also subject to a reporting duty to the Money Laundering Reporting Office Switzerland (MROS). Pursuant to Art. 27, para. 4 AMLA, it must report to MROS without delay if it has reasonable grounds to suspect that one of the following circumstances applies: a criminal offense under Art. 260^ter no. 1 or 305^bis SCC (lit. a), assets stem from a crime or a qualified tax offence under Art. 305^bis no. 1^bis SCC (lit. b), assets are subject to the power of disposal of a criminal or terrorist organization (lit. c) or assets are used to finance terrorism (Art. 260^quinquies para. 1 SCC) (lit. d).

21 The elements of the reporting requirement under Art. 27 para. 4 AMLA correspond essentially to the wording of Art. 9 para. 1 AMLA, although there are some differences, which are explained below. These differences do not, however, prevent the commentary on Art. 9 para. 1 AMLA from being used by analogy for interpretation. Unlike Art. 9, para. 1 AMLA, Art. 27, para. 4 AMLA only requires the SRO to report cases if there is reasonable suspicion. However, the obligation is not explicit if the SRO knows or has reliable information that an offence has been committed. However, it seems questionable whether this was actually intended, or whether it is merely a legislative oversight, since it is hard to imagine that the legislature consciously wanted to deviate from the regulatory concept of the reporting requirement under Art. 9 AMLA. Furthermore, the suspicion relevant for the reporting obligation according to Art. 27 para. 4 lit. b–d AMLA refers to the assets themselves and not, as in Art. 9 para. 1 AMLA, to “the assets involved in the business relationship”. If one wants to see this as intentional and does not also consider it to be legislative negligence, it could be explained by the fact that, in contrast to the financial intermediary, the supervisory authorities are not obliged to clarify the situation in accordance with Article 6 AMLA and therefore have less specific knowledge. Finally, unlike a violation of the reporting requirement under Article 9 AMLA, a violation of Article 27, para. 4 AMLA is not sanctioned under Article 37 AMLA.

22 The counterpart to Art. 27 para. 4 AMLA is Art. 16 AMLA for supervisory organizations, with the difference, however, that SROs are not subject to the duty to report violations in terms of Art. 305^ter para. 1 SCC by their affiliated financial intermediaries: According to Art. 305^ter para. 1 SCC, a financial intermediary is liable to prosecution if he fails to take the necessary due diligence to determine the identity of the beneficial owner. The legislator justified this difference by stating that, unlike the supervisory authorities established under special legislation and FINMA, SROs are subject to private law. However, since an SRO must respond appropriately to such violations as part of its supervisory activities, the facts of the case may nevertheless be reported to MROS. This is done indirectly, with the SRO reporting the sanction proceedings under Art. 27 para. 2 let. d AMLA to FINMA, which in turn files a report with MROS based on Art. 16 AMLA.

23 According to Art. 11 para. 2 AMLA, the exclusion of criminal and liability proceedings under Art. 11 para. 1 AMLA also expressly applies to SROs that report in accordance with Art. 27 para. 4 AMLA. Art. 11 para. 1 AMLA states that the reporting person, provided they act in good faith, “shall not be liable to any proceedings for breach of official, professional or business confidentiality nor to any liability in damages”. This provision ensures that an SRO that fulfills its reporting obligation in connection with suspicious assets in accordance with Art. 27 para. 4 AMLA does not have to fear any civil or criminal consequences. Art. 11 AMLA thus resolves the conflict between contradictory rights and obligations. The underlying general legal principle is based on the obvious fact that the law cannot prescribe or permit and at the same time punish one and the same behavior of a person. In criminal law, this principle is expressly enshrined in Art. 14 SCC. The same considerations also apply to the exclusion of liability under civil law: civil liability for reporting is therefore excluded, although this exclusion already applies at the level of the facts and not only when examining fault. Thus, for example, the assumption of illegality within the meaning of Art. 41 CO does not apply.

2. Subsidiarity (para. 5)

24 The reporting duty of the SRO under Art. 27, para. 4 AMLA is subsidiary, i.e. it only applies if the financial intermediary itself has not reported anything to the MROS (Art. 27, para. 5). Conversely, this means that the SRO is released from the reporting requirement under Art. 27, para. 4 AMLA if the affiliated financial intermediary has already submitted a corresponding report. On the other hand, the SRO's reporting obligation takes precedence if the report relates directly to the financial intermediary, based on the assumption that a financial intermediary is not likely to report suspicious assets within his own organization.

Bibliography

Benninger Nora/Wyss David, 65. Zusammenarbeit mit anderen inländischen Behörden, S. 300 ff., in: Zulauf Urs/Wyss David (Hrsg.), Finanzmarktenforcement, 3. Aufl., Bern 2002.

Beuret Arnaud, Kommentierung zu Art. 16 GwG, in: Peter V. Kunz/Thomas Jutzi/Simon Schären (Hrsg.), Stämpflis Handkommentar (SHK) zum Geldwäschereigesetz (GwG), Bern/Zürich 2017.

de Capitani Werner, in: Schmid Niklaus (Hrsg.), Kommentar Einziehung, Organisiertes Verbrechen, Geldwäscherei, Band II, Zürich 2002.

Häfelin Ulrich/Müller Georg/Uhlmann Felix, Allgemeines Verwaltungsrecht, 8. Aufl., Zürich/St. Gallen 2020.

Ivell Katrin, Kommentierung zu Art. 16 GwG, in: Peter Ch. Hsu/Daniel Flühmann (Hrsg.), Basler Kommentar, Geldwäschereigesetz, Basel 2021.

Kuster Matthias, Zur Abgrenzung des Melderechts nach Art. 305^ter Abs. 2 StGB von der Meldepflicht nach Art. 9 GwG, in: Jusletter vom 26. Juni 2017.

Neese Martin, Kommentierung zu Art. 27 GwG, in: Peter Ch. Hsu/Daniel Flühmann (Hrsg.), Basler Kommentar, Geldwäschereigesetz, Basel 2021.

Niggli Marcel Alexander/Göhlich Carola, Kommentierung zu Art. 14 StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, Strafgesetzbuch, Jugendstrafrecht, 4. Aufl., Basel 2019.

Porpiglia Gianni/Kunz Oliver M., Kommentierung zu Art. 11 GwG, in: Peter Ch. Hsu/Daniel Flühmann (Hrsg.), Basler Kommentar, Geldwäschereigesetz, Basel 2021.

Ramelet Nicolas, Kommentierung zu Art. 27 GwG, in: Peter V. Kunz/Thomas Jutzi/Simon Schären (Hrsg.), Stämpflis Handkommentar (SHK) zum Geldwäschereigesetz (GwG), Bern/Zürich 2017.

Schwob Renate/Wohlers Wolfgang, Kommentierung zu Art. 39 FINMAG, in: Watter Rolf/Bahar Rashid (Hrsg.), Basler Kommentar, Finanzmarktaufsichtsgesetz / Finanzmarktinfrastrukturgesetz (FINMAG/FinfraG), 3. Aufl., Basel 2019.

Stadler Stephan, Die gelenkte Selbstregulierung im Bereich der Geldwäscherei, LeGes 2006/3, S. 49-58.

Vollenweider Marino/Parigi Gianluca, Kommentierung zu Art. 88 FIDLEG, in: Sethe Rolf/Bösch René/Favre Olivier/Kramer Stefan/Schott Ansgar (Hrsg.), Kommentar zum Finanzdienstleistungsgesetz FIDLEG, Zürich/Basel/Genf 2021.

Zufferey Jean-Baptiste, Kommentierung zu Art. 27 GwG, in: Cassani Ursula/Bovet Christian/Villard Katia (Hrsg.), Commentaire Romand, Loi sur le blanchiment d’argent, Basel 2022.

Materials

Amtliche Sammlung des Bundesrechts, Nr. 11, 24.3.1998, Bekämpfung der Geldwäscherei im Finanzsektor (Geldwäschereigesetz, GwG), S. 892 ff., abrufbar unter https://www.amtsdruckschriften.bar.admin.ch/viewOrigDoc/30002712.pdf?id=30002712, besucht am 23.8.2024.

Botschaft zum Bundesgesetz über die Eidgenössische Finanzmarktaufsicht (Finanzmarktaufsichtsgesetz; FINMAG) vom 1.2.2006, BBl 2006 2829, abrufbar unter https://www.fedlex.admin.ch/eli/fga/2006/303/de, besucht am 23.8.2024.

Eidgenössische Finanzmarktaufsicht (FINMA), Rundschreiben 2008/17 Informationsaustausch zwischen den SRO und der FINMA betreffend Anschlüsse, Ausschlüsse und Austritte von Finanzintermediären vom 20.11.2008, abrufbar unter https://www.finma.ch/de/~/media/finma/dokumente/dokumentencenter/myfinma/rundschreiben/finma-rs-2008-17.pdf?sc_lang=de&hash=71FFD4758724C36DBC692710A9C8477B, besucht am 23.8.2024.

Eidgenössische Finanzverwaltung (EFV), Kontrollstelle GwG, Rundschreiben 2006/1 Informationsaustausch zwischen den SRO und der Kontrollstelle betreffend Anschlüsse, Ausschlüsse und Austritte von Finanzintermediären vom 10.4.2006, abrufbar unter https://www.finma.ch/finmaarchiv/gwg/d/dokumentationen/gesetze_und_regulierung/rundschreiben/index.php, besucht am 23.8.2024.

Forum Schweizer Selbstregulierungsorganisationen (Forum-SRO), Statuten vom 30.9.2009, abrufbar unter https://www.forum-sro.ch/_files/ugd/f269ef_75384def8a2144b9814c2d42076907d9.pdf, besucht am 23.8.2024.