I. Addressees of the AMLA: basic idea

1 The AMLA came into force on April 1, 1998, in response to international pressure. The original purpose of the law was to recognize and, if possible, prevent the act of concealing the origin of assets by a perpetrator, and to supplement the criminal offenses of money laundering and lack of due diligence in financial transactions. The AMLA is primarily aimed at combating money laundering and ensuring due diligence in financial transactions (see the commentary on Art. 1 AMLA). For this purpose, the law is intended to cover persons who are not necessarily involved in the predicate offense of money laundering, but who are (may be) used by criminals after the commission of the predicate offense to allow assets of illegal origin to flow into the economic cycle and thus to conceal their origin or to either extend the so-called “paper trail” or not even allow it to arise.

2 The purpose of the AMLA was expanded as of February 1, 2009. It should also serve to combat the financing of terrorism. A further expansion of the article on the purpose of the law to include the prevention of violations of coercive measures under the Embargo Act was sent to the consultation process in 2023 and was also retained at the draft stage (2024); the corresponding draft will (as of August 2024) be discussed by parliament in the next few months. In my opinion, the extension of the scope to include another law should be rejected. The legal bases of the EmbA are sufficient; in addition, a mixing of the two laws (EmbA and AMLA) creates further ambiguities and places demands on the AMLA that it will not be able to fulfill.

3 The scope of application of the AMLA and the duties triggered by this law are specified at various levels: by means of ordinances (AMLO and AMLO-FINMA), circulars (in particular FINMA Circular 2011/1) and self-regulation (e.g. CDB 20 or various regulations of self-regulatory organizations).

II. Financial intermediaries

A. General

4 When the AMLA was drafted, the legislator was faced with the challenge of identifying service providers susceptible to acts of concealment and designating them as concisely as possible. He chose the term “financial intermediary”. The term “financial” refers to the financial and monetary system on the one hand, and to the entirety of the money and banking experts working in this area on the other. An “intermediary” is a person who acts as an intermediate link. In the wording of the law, financial intermediaries are therefore persons who can be assigned to the financial sector, who interpose themselves in transactions and who act in this capacity for third parties.

5 The term “financial intermediary” is practical because, on the one hand, it is open and not very specific and, on the other hand, it is somewhat concise. However, the vagueness of the definition of Art. 2 para. 3 AMLA (see below, N. 7 et seq., as well as the commentary on Art. 2 para. 3 AMLA) results in a delicate degree of legal uncertainty and, in certain cases, even a violation of the sufficient level of the norm. The legislator faces a dilemma when dealing with the risks of money laundering: he has to perform a balancing act between a scope that is as open as possible and one that is clearly defined. On the one hand, the regulation must be precisely tailored to the risks of specific activities and serve as a basis for interventions in economic freedom (and thus meet the requirements of Art. 36 FC), for which a high level of standardization is required. On the other hand, regulation must take into account the development dynamics and innovation potential in different sectors and be formulated as openly as possible for this purpose. Otherwise, minor changes to business models worthy of subordination could lead to an undesirable non-coverage by the AMLA. It is important that the legislator and the authorities carefully weigh these diametrically opposed interests. To make matters worse, Swiss legal tradition (compared to legislation in neighboring countries) tends to produce fairly concise laws, deliberately leaving room for interpretation by courts and authorities.

6 Since the AMLA came into force on April 1, 1998, financial intermediaries (the only category of service providers covered by the AMLA at the time) have had to comply with various duties. These include, on the one hand, a duty to document the contracting party and the beneficial owners of the assets, and on the other hand, the duty to file a report in the event of suspicion so that the authorities can take action. Contrary to popular belief, the AMLA is not a criminal law, but an economic administrative law. Anyone who violates the AMLA faces administrative (e.g. Art. 29 et seq. FINMASA) and, in certain cases, criminal consequences (Art. 37 and Art. 38 AMLA). Furthermore, anyone who violates AMLA obligations may also be liable to prosecution for money laundering (Art. 305^bis SCC) or for failing to exercise due diligence in financial transactions (Art. 305^ter para. 1 SCC). The concept of a financial intermediary remains in force today. However, it has been continuously defined in more detail, and also expanded in tendency, but also restricted in some cases, by legislators and regulators, official practice (initially by the Anti-Money Laundering Control Authority and since January 1, 2009 by FINMA) and case law.

B. Concept and system

7 Financial intermediaries are named in Art. 2 para. 1 let. a AMLA and described in Art. 2 para. 2 and 3 AMLA. In theory and practice, financial intermediaries are designated differently in accordance with Art. 2 para. 2 and 3 AMLA. For example, the financial intermediaries under Art. 2 para. 2 AMLA are referred to as “financial intermediaries in the strict sense” and the financial intermediaries under Art. 2 para. 3 AMLA as “financial intermediaries in the broader sense” or as “other financial intermediaries”. Officially, the legislator, the Federal Supreme Court and FINMA use the terms “financial intermediaries under special statutory supervision” for the financial intermediaries pursuant to Art. 2 para. 2 AMLA and “financial intermediaries not subject to special statutory supervision” for the financial intermediaries pursuant to Art. 2 para. 3 AMLA. In my opinion, however, these designations are inaccurate and no longer correct. The difference between the two categories of financial intermediaries is that the financial intermediaries falling under Art. 2 para. 2 AMLA are subject to prudential supervision, i.e. they have to comply with other financial market laws in addition to the AMLA (e.g. FinIA, FinSA or BankG). In the view presented here, the term “financial intermediaries under prudential supervision” (Art. 2 para. 2 AMLA) is therefore the most precise. By contrast, financial intermediaries within the meaning of Art. 2 para. 3 AMLA are subject to the supervision of self-regulatory organizations and are not prudentially supervised, but only with regard to the AMLA provisions. Consequently, they should be referred to as “financial intermediaries not subject to prudential supervision” or as “financial intermediaries subject to the supervision of self-regulatory organizations”.

8 The financial intermediaries subject to prudential supervision are listed in Art. 2 para. 2 let. a–g AMLA. The list of financial intermediaries not subject to prudential supervision in Art. 2 para. 3 let. a–e AMLA, on the other hand, is not exhaustive, since Art. 2 para. 3 AMLA contains a general clause and the subsequent list is introduced by the word “in particular”. The general clause provides leeway for including newly emerging activities and services under the AMLA, provided that certain criteria are met.

9 Pursuant to the general clause of Art. 2 para. 3 AMLA, financial intermediaries are persons who, on a professional basis, accept or hold assets belonging to third parties or help invest or transfer them. According to the view presented here (and probably also the prevailing view), this definition is decisive for all financial intermediaries under the AMLA, including those under Art. 2 para. 2 AMLA. The term “professionally” is defined in Art. 7 et seq. AMLO. The term “financial intermediary” under Art. 2 para. 3 AMLA is further defined in FINMA-Circ. 2011/1, where FINMA publishes its interpretation of the term. The circular may only provide information on the application and interpretation of the authorities, but may not contain any legislative provisions, since circulars are so-called administrative ordinances. FINMA Circular 2011/1 has been in need of an update for some time, not least because certain of the laws and ordinances referenced in it have since been amended.

C. Exemptions

10 There are countless exemptions from the scope of application of the AMLA. At the statutory level, reference is made to Art. 2 para. 4 AMLA and to the commentary on these provisions. In summary, the following persons are not covered by the AMLA: the Swiss National Bank (lit. a); tax-exempted occupational pension funds (lit. b); persons who provide their services exclusively to tax-exempted occupational pension funds (lit. c); financial intermediaries in accordance with Art. 2 para. 3 AMLA, who provide their services exclusively to financial intermediaries in accordance with Art. 2 para. 2 AMLA or to foreign financial intermediaries who are subject to equivalent supervision (lit. d); as well as limited qualified investor funds (L-QIF) in the legal form of an investment company with variable capital (SICAV) or a limited partnership for collective investments (LLPCI) if the institution responsible for management in accordance with Art. 118h para. 1, 2 or 4 CISA assumes the obligations contained in this Act (lit. e).

11 Further exemptions from the scope of application are included in Art. 2 para. 2 AMLO at the ordinance level. Accordingly, persons who carry out the following activities are also not financial intermediaries within the meaning of Art. 2 para. 3 AMLA and are exempt from the AMLA: The purely physical transport or the purely physical storage of assets, subject to Art. 6 para. 1 let. c AMLO (let. a no. 1), collection activities (let. a no. 2), the transfer of assets as an accessory provision to a principal contractual service (let. a no. 3), the operation of pillar 3a pension schemes by bank foundations or insurance companies (lit. a no. 4), the provision of services between group companies (lit. a no. 5) and, subject to certain conditions, the activity as an auxiliary of a financial intermediary (lit. b). These exceptions are further specified in FINMA Circular 2011/1.

D. Demarcation

12 The concept of financial intermediary must be clearly distinguished from that of dealer (see N. 18 et seq.). A person cannot be a financial intermediary and a dealer at the same time for the same activity or service. If he is a financial intermediary and a dealer (e.g. because he trades in certificated securities and thus de facto fulfills the conditions of both Art. 2 para. 3 let. c AMLA and Art. 2 para. 1 let. b AMLA), he must comply with the obligations for financial intermediaries. In other words, the provisions for dealers are subsidiary to the provisions for financial intermediaries. Traders usually act as dealers; however, dealers are not usually financial intermediaries, unless they deal in banknotes and coins, money market instruments, foreign exchange, precious metals, commodities and securities (certificated and uncertificated) and their derivatives (Art. 2 para. 3 let. c AMLA). Accordingly, the potential for overlap between the provisions on dealers and those on financial intermediaries is limited.

13 Similarly, a distinction must be made between dealers and financial service providers under the FinSA and financial institutions under the FinIA: not all financial service providers fall under the AMLA, but only those that act as financial intermediaries. By contrast, financial institutions such as asset managers, trustees, securities firms and fund management companies are always subject to the AMLA due to the reference in Art. 2 para. 2 let. a^bis, b and d AMLA and are financial intermediaries under prudential supervision. The FinSA, in turn, ties in with the concept of financial intermediaries in the provisions on client segmentation (Art. 4 para. 3 let. a FinSA).

14 The criminal offence of lack of due diligence in financial transactions (Art. 305^ter para. 1 SCC) contains a definition of the category of perpetrators that corresponds to the general clause of Art. 2 para. 3 AMLA. However, the SCC does not use the term “financial intermediary”.

E. Duties

15 Financial intermediaries shall be subject to the duties set forth by the law. These duties are divided into due diligence obligations (Art. 3 et seq. AMLA), such as the identification of the contracting party (Art. 3 AMLA), the identification of the beneficial owner (Art. 4 AMLA), the renewed identification or verification of the identity of the beneficial owner (Art. 5 AMLA), special due diligence requirements (Art. 6 AMLA), the documentation requirement (Art. 7 AMLA) and organizational measures (Art. 8 AMLA). The due diligence requirements must be complied with at all times.

16 Furthermore, there are obligations that only apply in cases of suspected money laundering. These are the reporting requirement (Art. 9 para. 1 AMLA), with special rules on customer orders (Art. 9a AMLA) and the termination of the business relationship (Art. 9b AMLA), the freezing of assets (Art. 10 AMLA) and the prohibition of information (Art. 10a AMLA).

17 The AMLA provides for various supervisory concepts: the financial intermediaries pursuant to Art. 2 para. 2 AMLA are supervised by a federal authority (e.g. FINMA or the SFGB, see Art. 12 AMLA). Asset managers and trustees under FinIA (Art. 2 para. 2 let. a^bis AMLA) are subject to ongoing supervision by a supervisory organization, which in turn is authorized and supervised by FINMA (Art. 61 para. 1 and 2 FinIA). The supervision is prudential, i.e. it relates to a variety of financial market laws and not just to the AMLA. FINMA can open enforcement proceedings against financial intermediaries in accordance with Art. 2 para. 2 AMLA and take the measures in accordance with Art. 29 et seq. FINMASA if AMLA obligations are violated.

18 By contrast, financial intermediaries as defined in Article 2, para. 3 AMLA are supervised by self-regulatory organizations (see Article 12, let. c in conjunction with Article 24 AMLA) and are subject only to the AMLA as the only financial market law. In the event of violations of the AMLA or the self-regulatory organization regulations, the measures provided for in the regulations of the self-regulatory organization (e.g. reprimand or exclusion) will generally apply. However, anyone who acts as a financial intermediary without being affiliated to a self-regulatory organization may also be subject to enforcement measures by FINMA within the meaning of Art. 29 et seq. FINMASA pursuant to Art. 20 para. 1 AMLA.

III. Dealers

A. General

19 Until December 31, 2015, the AMLA applied exclusively to financial intermediaries. On January 1, 2016, this paradigm, which had been in force for almost 16 years, was changed: Dealers were added to Art. 2 para. 1 lit. b AMLA as part of the Federal Act of December 12, 2014, for the Implementation of the 2012 Revised Recommendations of the Financial Action Task Force. By including dealers and by deleting the passage “in the financial sector” in the title of the AMLA as of January 1, 2016, the scope of the AMLA (nota bene a financial market law according to Art. 1 para. 1 lit. f FINMASA) was deliberately extended to activities outside the financial sector. In addition, the addition “for financial intermediaries” was deleted from the title of the obligations under the AMLA. Critics feared (in my opinion, rightly so) that the “Pandora's box” would be opened if, for the first time, dealers were to be covered by the AMLA. This is a trend that is (and was) continuing (which was already foreseeable at the time).

20 While the GAFI recommendations, even in their current version, do not necessarily cover all traders, but only precious metal and precious stone traders who accept cash in the amount of 15,000 euros or more, the EU has already so-called Third Money Laundering Directive (2005/60/EC) a stricter approach and subjected goods dealers to certain due diligence requirements if the transaction amount exceeded EUR 15,000. This threshold was lowered to EUR 10,000 with the Fourth Money Laundering Directive (Directive (EU) 2015/849). In the future, there should even be an upper limit for cash payments in the EU. The EU thus mistrusts the cash purchase of goods of any category, while the FATF leaves it to the states to define, in addition to precious metals and precious stones, further goods for the cash sale of which obligations are introduced.

21 The Federal Council's original proposal was to introduce a cash ban for amounts over CHF 100,000. This proposal was rejected by parliament. In the parliamentary debate, the parliamentarians agreed to impose due diligence requirements on traders instead of banning cash payments for amounts over CHF 100,000. Cash payments will therefore remain possible without restriction for the time being. This compromise solution has been criticized as “half-hearted” in some quarters (see also the commentary on Art. 38 N. 13 f.), but it has also been welcomed.

B. Concept and classification

22 In simple terms, the reason why dealers are subject to the Act is to prevent criminal organizations from converting money of criminal origin into (luxury) goods. From an objective point of view, anyone who trades in goods and accepts cash in the process is deemed to be a dealer under Article 2 paragraph 1 letter b AMLA. However, this does not mean that every dealer is covered by the AMLA: AMLA only applies to persons who, in the course of their commercial activities as dealers in goods, accept cash in excess of CHF 100,000 (see Art. 8a para. 1 AMLA). A single purchase transaction in excess of CHF 100,000 is sufficient to trigger the application of AMLA. Staggering the purchase price into several tranches of less than CHF 100,000.01 also results in the trader being subject to the AMLA (Art. 8a, para. 3 AMLA): as soon as several transactions between the same parties are closely connected in terms of time or economic purpose, the partial amounts are added together, which may result in the seller being recorded as a trader. According to Art. 15 AMLO, goods are movable or immovable objects that can be the subject of a sale of movables or a sale of real estate. This excludes claims and uncertificated securities, unless they are securitized in a document. Furthermore, there must be a purchase or commission transaction in the course of which the dealer sells at least one “good” in the aforementioned sense. Service contracts are not covered. The dealer must accept cash. Cash includes all legal tender with a compulsory exchange rate, i.e. coins issued by the federal government and banknotes issued by the Swiss National Bank (Art. 2 WZG). Foreign currencies that are in circulation as physical means of payment are also considered cash under Art. 2 para. 1 let. b AMLA. If the purchase price is accepted through a financial intermediary (and not directly by the merchant), the AMLA merchant provisions do not apply to the goods merchant (Art. 8a para. 4 AMLA). Dealers thus have a choice: either they accept the cash and have to fulfill the AMLA obligations, or they persuade their customers to pay the debt through a financial intermediary (e.g. by bank transfer). The activity of the dealer must be commercial, i.e. the sale must be in connection with an independent economic activity aimed at making a profit (Art. 14 para. 1 AMLO). However, it is irrelevant (in contrast to certain financial intermediary activities) whether the activity is accessory or not (Art. 14 para. 2 AMLO).

23 Both natural persons and legal entities are classified as dealers in personal terms. These are primarily dealers who, in their own name and for their own account (possibly through auxiliary persons), carry out purchase transactions. However, dealers also include persons who conclude a purchase contract on behalf of and for the account of a third party and thus in indirect representation, in accordance with Art. 13 AMLO. Art. 13 AMLO is to be understood in the sense that persons who conclude purchase agreements in their own name but on behalf of a third party (sale on behalf of a third party) are themselves considered dealers within the meaning of AMLA. According to the intention of the legislator, the provision is intended in particular to cover auctioneers and auction houses that carry out the purchase transaction for the seller of an item. The involvement of third parties in accordance with Art. 16 AMLO must be distinguished from the sale on behalf of a third party. In this constellation, the third party acts on behalf of a third party, is involved solely for the purpose of processing the purchase transaction and is therefore not to be classified as a dealer. He is not subject to the AMLA. Rather, it is the dealer's responsibility to ensure that the third party commissioned with the transaction complies with the due diligence requirements as defined in Art. 8a AMLA (Art. 16 AMLO). This obligation is a type of “principal's liability”. If a sale is made on behalf of a third party, it is generally a commission transaction (Art. 425 CO). Since the commission agent purchases and sells in his own name but on behalf of the principal, the commission agent is subject to the dealer provisions in accordance with Art. 13 AMLO. Brokers, on the other hand, are not covered (Art. 412 et seq. CO), since they merely provide evidence of an opportunity to conclude a contract or broker the conclusion of a contract without themselves being a party to the contract. In my opinion, the same should apply by analogy to agency contracts (Art. 418a ff. CO), in that the agents within the meaning of Art. 16 AMLO should be qualified as auxiliaries of a dealer, who is responsible for ensuring that the agents comply with the duties of due diligence in accordance with Art. 8a AMLA. In my opinion, however, the agents themselves should not be classified as dealers, since they do not accept cash or conclude legal transactions in their own name, but in the name of a third party. If an order exists (Art. 394 ff. CO), the agent always acts for the account and at the risk of the principal. Accordingly, the question of whether the agent should be recorded as a trader depends on whether they are acting in their own name or in the name of a third party. In principle, both constellations are possible under the law of agency. The subject of agency without authority (Art. 419 et seq. CO) can also be legal acts. In such a case, the agent always acts in their own name, which is why, in my opinion, they can be recorded as a trader. If there is an exclusive distribution contract, the exclusive agent acts in his own name and on his own account; in my opinion, he is therefore considered to be a dealer himself, without Articles 13 and 16 AMLO applying. These statements also apply to the junk dealer in a junk contract, who also always acts in his own name and on his own account.

C. Obligations

24 In contrast to the financial intermediaries, who must comply with a large number of obligations of the AMLA, dealers (in accordance with the lower risk compared to most financial intermediaries) are only subject to the due diligence obligations mentioned in Art. 8a para. 1 AMLA. These are the identification of the contracting party (Art. 3 para. 1 AMLA), the identification of the beneficial owner (Art. 4 para. 1 and 2 lit. a and b AMLA) and the documentation requirement (Art. 7 AMLA). The law explicitly refers to the obligations that apply to financial intermediaries for these obligations. Deviations for dealers can only be assumed if the law or the ordinances explicitly define different rules for them. Please refer to the comments on Art. 8a AMLA.

25 Dealers are also subject to a reporting requirement in the event of suspicious circumstances as defined in Art. 9 para. 1^bis AMLA. The reasons that trigger a reporting requirement are identical to those of Art. 9 para. 1 let. a no. 1–4 AMLA. Traders are also subject to the prohibition of information after reporting (Art. 10a para. 5 AMLA). Violation of the reporting requirement will result in criminal prosecution (Art. 37 AMLA). Please refer to the comments on Art. 9, 10a and 37 AMLA.

26 Since dealers are not supervised by a federal authority such as FINMA or a self-regulatory organization, they are subject to an audit requirement. They must commission an audit firm to verify that they are complying with their obligations under Chapter 2 of the Act (Art. 15 para. 1 AMLA). Violation of the duty under Art. 15, para. 1 AMLA is subject to criminal prosecution (Art. 38 AMLA). Please refer to the comments on Art. 15 and Art. 38 AMLA.

IV. Territorial application of the AMLA

27 The law does not contain any provisions on the territorial application of the AMLA. However, Art. 2 AMLO contains provisions in this regard. Art. 2 para. 1 let. a and b AMLO stipulates that financial intermediaries (pursuant to Art. 2 para. 2 and para. 3 AMLO) and dealers (pursuant to Art. 2 para. 1 let. b AMLO) must be active in Switzerland or operating from Switzerland in order to fall under the AMLO. The scope defined in AMLO actually only refers to the scope of AMLO. However, according to the view presented here, it makes sense to also apply the description of the geographical scope to AMLA itself. Pursuant to Article 5 AMLO-FINMA, the AMLA has a spillover effect for branches or group companies abroad – the financial intermediary must ensure that such companies comply with the AMLO-FINMA principles. Furthermore, the risks must be monitored globally in accordance with Article 6 AMLO-FINMA.

28 FINMA Circular 2011/1 explains how the geographical scope is interpreted by FINMA. Accordingly, a person is deemed to be operating in or from Switzerland if they are domiciled or registered in Switzerland; or if they employ persons in Switzerland who permanently carry out activities subject to the AMLA in or from Switzerland or can legally obligate them to do so (de facto branch). This includes business premises of companies that are constituted under foreign law and have their main business premises abroad, but which pursue an activity requiring a license here without having formally established a branch. A de facto branch also includes persons who regularly assist the foreign financial intermediary in Switzerland or from Switzerland in carrying out essential elements of the financial intermediary activity, such as receiving or handing over assets or providing financial intermediary services. The published FINMA practice does not explain the duration required for a de facto branch to be established, but it does explicitly assume permanence. In practice, there is a great deal of uncertainty in this regard. In my opinion, however, it is necessary that a certain threshold be exceeded with regard to both the absolute duration and the regularity of the presence. According to the FINMA practice, the following circumstances, for example, fall within the territorial scope of the AMLA: (i) a foreign money transmitter uses a network of agents in Switzerland to accept or disburse funds in its name; (ii) a foreign company issues prepaid cards and distributes them through a point of sale in Switzerland; (iii) a person in Switzerland concludes loan agreements with customers for a foreign company or accepts repayments for the company based on a loan agreement. On the other hand, the following situations, for example, do not fall within the territorial scope of AMLA according to FINMA practice: (i) an asset manager operating and licensed abroad is authorized by his client to dispose of the assets deposited in a Swiss bank account; (ii) a banknote dealer operating and licensed abroad supplies banknotes to a customer in Switzerland; (iii) a financial intermediary operating and licensed abroad offers financial intermediary services in Switzerland exclusively via the internet or other electronic channels; (iv) a foreign asset manager comes to Switzerland temporarily to look after his clients here.

29 By implication, it can therefore be stated that activities carried out exclusively across Switzerland's borders from abroad for customers in Switzerland (“cross-border”) do not trigger any AMLA obligations.

30 In principle, the same rules apply to dealers as to financial intermediaries (see the wording of Art. 2 para. 1 let. b AMLO). However, according to the Federal Council's understanding, it is not the domicile/residence of the dealer or the duration of the presence in Switzerland that is significant, but the place of execution. According to this view, as soon as a trader accepts more than CHF 100,000 in cash in the course of a transaction that is processed in Switzerland, the elements of the offense under Art. 8aAMLA would be fulfilled and the seller would have to fulfill the corresponding AMLA obligations, even if he had traveled from abroad. This view is in part welcomed or not further critically assessed in legal doctrine, but in part also criticized. The criticism refers above all to the fact that the place of the transaction is a weak connecting criterion. Furthermore, it is absurd to provide for tougher rules for dealers (who generally exhibit a lower risk than most financial intermediaries). Furthermore, it is impossible to impose and enforce AMLA obligations on dealers who do not have their domicile or registered office in Switzerland. In particular, it would be absurd to commission an audit firm to audit Swiss law. This is to be agreed.

31 In general, it would be desirable if the geographical scope were more precisely specified and defined at the legislative level. This would be necessary due to the requirement of a sufficient level of legislation for serious encroachment on economic freedom (see Art. 36 para. 1 FC).

V. Outlook: possible further expansion of the group of addressees

32 The FATF Recommendations require that certain advisory services be covered by anti-money laundering law (see Recommendation 22 [due diligence], Recommendation 23 [reporting obligations] and Recommendation 28 [supervision]). After similar initiatives were launched in Switzerland in 2019 but ultimately failed in parliament, a bill to strengthen the fight against money laundering was submitted for consultation in fall 2023. The (provisional) result is the message on the Federal Act on the Transparency of Legal Entities and the Identification of Beneficial Owners. In addition to the creation of a transparency register (to be introduced by the so-called Federal Act on the Transparency of Legal Entities and the Identification of Beneficial Owners, or TJPG for short), so-called “advisers” are to be newly included as a separate group of addressees by the AMLA. Advisers include lawyers, notaries and other service providers who offer legal or accounting advice when they are professionally involved in planning or executing a specified transaction for clients. Examples of reportable transactions include the purchase of real estate, the formation or management of a company, foundation or trust, the organization of a company's fundraising, and the purchase and sale of a company. An exception to the reporting requirement is provided for professions that are subject to professional confidentiality. On the other hand, any service provider is also a so-called “consultant” if they establish a company, a foundation or a trust; if they provide a company, foundation or trust with a domicile or premises; or if they act as a shareholder in a fiduciary capacity. Although the bill fulfills the FATF recommendations, it has been met with fierce criticism, particularly from various professional associations.

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Materials

Amtliches Bulletin Nationalrat 2014, abrufbar unter https://www.parlament.ch/centers/documents/de/NR_4916_1412.pdf, besucht am 31.8.2024 (zit. AB 2014 NR).

Amtliches Bulletin Ständerat 2014, abrufbar unter https://www.parlament.ch/centers/documents/de/SR_4916_1412.pdf, besucht am 31.8.2024 (zit. AB 2014 SR).

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).

Botschaft zum Bundesgesetz zur Bekämpfung der Geldwäscherei im Finanzsektor (Geldwäschereigesetz, GwG) vom 17.6.1996, BBl 1996 III 1101 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1996/3_1101_1057_993/de, besucht am 31. August 2024 (zit. Botschaft GwG 1996).

Botschaft zum Bundesgesetz über die Transparenz juristischer Personen und die Identifikation der wirtschaftlich berechtigten Personen, nicht datiert (Vorabdruck), 2024, abrufbar unter https://www.newsd.admin.ch/newsd/message/attachments/87770.pdf, besucht am 31.8.2024 (zit. Botschaft TJPG 2024).

Botschaft zur Umsetzung der 2012 revidierten Empfehlungen der Groupe d’action financière (GAFI), BBl 2014 605 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2014/100/de, zuletzt besucht am 31.8.2024 (zit. Botschaft GAFI 2013).

Botschaft zur Umsetzung der revidierten Empfehlungen der Groupe d’action financière (GAFI), BBl 2007 6295 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2007/938/de, besucht am 31.8.2024 (zit. Botschaft GAFI 2007).

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).

FINMA, Rundschreiben 2011/1, Tätigkeit als Finanzintermediär nach GwG: Ausführungen zur Geldwäschereiverordnung (GwV), 20.10.2010, zuletzt geändert am 4.11.2020, abrufbar unter https://www.finma.ch/de/~/media/finma/dokumente/dokumentencenter/myfinma/rundschreiben/finma-rs-2011-01-01-01-2017.pdf?sc_lang=de&hash=C13E76F1B7CE20DFB9B822526B383187, besucht am 31.8.2024 (zit. FINMA-RS 2011/1).

GAFI/FATF, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation vom 16.2.2012, aktualisiert im November 2023, abrufbar unter https://www.fatf-gafi.org/content/dam/fatf-gafi/recommendations/FATF%20Recommendations%202012.pdf.coredownload.inline.pdf, zuletzt besucht am 31.8.2024 (zit. GAFI-Empfehlungen).

Praxis der Kontrollstelle für die Bekämpfung der Geldwäscherei zu Art. 2 Abs. 3 GwG: Der Geltungsbereich des Geldwäschereigesetzes im Nichtbankensektor, 29.10.2008 (mittlerweile ausser Kraft gesetzt), abrufbar unter https://www.finma.ch/FinmaArchiv/gwg/d/dokumentationen/publikationen/gwg_auslegung/pdf/59402.pdf, besucht am 31.8.2024 (zit. Kst, Unterstellungskommentar).

Vereinbarung über die Standesregeln zur Sorgfaltspflicht der Banken zwischen der Schweizerischen Bankiervereinigung (SBVg) einerseits und den unterzeichnenden Banken andererseits, vom 13.6.2018, abrufbar unter https://www.swissbanking.ch/_Resources/Persistent/e/2/5/4/e254d3078d72c23dcbc13352a34223c518303ec8/SBVg_Vereinbarung_VSB_2020_DE.pdf, besucht am 31.8.2024 (zit. VSB 20).