I. Introduction

1 With the creation of Art. 29b AMLA, the logical expansion of the national exchange of information to include self-regulatory and supervisory organizations (so-called para-statal supervisory authorities), which can exchange all information required for the enforcement of the AMLA with the reporting office. This legal amendment, which came into force on January 1, 2023, strengthens national cooperation and ensures compliance with the recommendations of the Financial Action Task Force (FATF). The content of Article 29b AMLA is practically identical to the provision on the exchange of information with supervisory authorities under Article 29, para. 1 AMLA, which is why the following explanations often refer to OK-Triller, Art. 29 AMLA, N. 9 ff.

II. Exchange of information with self-regulatory organizations (SROs) and supervisory organizations (AOs) (Art. 29b para. 1 AMLA)

2 Art. 29b AMLA provides the legal basis for the exchange of information between the Reporting Office and the self-regulatory organizations (SROs) and supervisory organizations (AO). In terms of content, this exchange of information is substantially aligned with Art. 29 para. 1 AMLA, since the SROs and AOs, as para-statal supervisory authorities, must also have access to the information available at MROS. Administrative assistance is reciprocal.

A. Institutions eligible for administrative assistance

3 Art. 29b para. 1 AMLA covers “recognized” SROs. According to Art. 24 AMLA, these are SROs that are recognized and supervised by the Swiss Financial Market Supervisory Authority FINMA and also have statutory authority to regulate and supervise their affiliated financial intermediaries. All financial intermediaries within the meaning of Article 2 paragraph 3 AMLA (Article 14 paragraph 1 AMLA) must be affiliated to an SRO.

4 MROS can also exchange information with AO. As a para-statal supervisory authority, an AO must be licensed by FINMA in order to carry out its financial market supervisory activities and implement its legal mandate. All independent asset managers and trustees subject to the law must join an AO (Art. 5 in conjunction with Art. 61 FinIA).

B. Optional provision

5 In line with Article 29, paragraph 1 AMLA, the regulation of the exchange of information with self-regulatory and supervisory organizations is an “optional provision”. The decision on whether to provide administrative assistance lies with MROS, the SROs or the AOs.

6 Administrative assistance can be provided in response to a specific request or spontaneously.

C. Exchange of “information”

7 In line with Article 29, para. 1 AMLA, the reporting office and the parastatal supervisory authorities can only exchange information, but not documents. This means that the information transmitted must be in report form and without delivery of (original) documents.

8 For further information on the practical aspects and the associated problems involved in the transmission of “information”, please refer to OK-Triller, Art. 29 AMLA, N. 13 ff.

D. Purpose limitation as a barrier to the exchange of information

9 The exchange of information between MROS and the self-regulatory and supervisory organizations is limited to the application of the Anti-Money Laundering Act. This earmarking determines what information the authorities can exchange with each other.

10 In line with Article 29, para. 1 AMLA, the purpose of the AMLA includes all information relating to the fight against money laundering, the fight against terrorist financing and ensuring due diligence in financial transactions. The latter also includes the due diligence obligations of financial intermediaries or the obligations in the event of suspected money laundering (see also OK-Triller, Art. 29 AMLA, N. 12 et seq.).

III. Approval of the prosecuting authorities (Art. 29b para. 2 AMLA)

11 Unlike the administrative assistance between MROS and the supervisory authorities under Article 29, para. 1 AMLA, MROS may only pass on information from law enforcement authorities to the SROs and AOs with their express consent.

12 The report on the results of the consultation on the amendment of the Federal Act on Combating Money Laundering and Terrorist Financing stated that this provision is intended to take account of any conflicts of interest and to align the regulations with those concerning foreign reporting offices. The ultimate goal is to ensure that parastatal supervisory authorities are treated the same as foreign reporting offices (Art. 30 para. 5 AMLA).

IV. Restrictions on use when forwarding foreign information (Art. 29b, para. 3 AMLA)

13 In line with the provisions of Art. 29 para. 2^ter AMLA, information from foreign reporting offices may only be passed on to SROs and AOs with the express permission of the reporting office in question. In addition, Art. 29b para. 3 AMLA explicitly refers to the provisions of Art. 29 para. 2^ter AMLA and thus to the analogous application of Art. 30 para. 2–5 AMLA.

14 For a detailed discussion of the associated interpretation issues, please refer to the OK-Triller, Art. 29 AMLA, N. 47 ff..

Bibliography

Nägeli Vera, Kommentierung zu Art. 29 GwG, in: Hsu Peter Ch./Flühmann Daniel, Basler Kommentar, Geldwäschereigesetz, Zürich 2021.

Materials

Botschaft zur Änderung des Geldwäschereigesetzes vom 26.6.2019, BBl 2019, abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2019/1932/de/pdf-a/fedlex-data-admin-ch-eli-fga-2019-1932-de-pdf-a.pdf, besucht am 27.8.2024 (zit. Botschaft GwG 2019).

Vernehmlassung zur Änderung des Bundesgesetzes über die Bekämpfung der Geldwäscherei und der Terrorismusfinanzierung (Geldwäschereigesetz), Ergebnisbericht vom 26.6.2019, abrufbar unter https://www.newsd.admin.ch/newsd/message/attachments/57537.pdf, besucht am 27.8.2024 (zit. Ergebnisbericht 2019).