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- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
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- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
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- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
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- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
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- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
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- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
- I. General
- II. Disclosure of information to foreign reporting offices (para. 1)
- III. Examples of information to be transmitted (para. 2)
- IV. Reporting form (para. 3)
- V. Forwarding to a foreign third authority (para. 4)
- VI. Requirement for authorization in the event of Swiss criminal proceedings (para. 5)
- VII. Memorandum of Understanding (para. 6)
- Bibliography
- Materials
I. General
1 Article 30 AMLA governs the collaboration between the Money Laundering Reporting Office Switzerland (MROS) and foreign reporting Offices (often also referred to as Financial Intelligence Units or “FIUs”).
2 In this context, the article can be divided into three thematic parts. The first thematic part, which consists of paras. 1–3 of Art. 30 AMLA, deals with the transmission of information from the reporting office to a foreign partner authority. It defines the requirements that the foreign reporting office must fulfill in order for MROS to be able to provide personal data and other information. In addition, the type of information transmitted and the form of transmission are specified.
3 Paras. 4 and 5 constitute the second thematic part of Art. 30 AMLA. This regulates the forwarding of information supplied by MROS by the foreign reporting office to a third-party authority. On the one hand, the conditions to be fulfilled by the third-party authority in the event of such forwarding are defined. On the other hand, the procedure to be followed by MROS is determined in the event that the request for forwarding of the information by the foreign reporting office to a third-party authority concerns a matter that is the subject of criminal proceedings in Switzerland.
4 The third and final part of Article 30 AMLA concerns para. 6. This gives MROS the authority to regulate the arrangements for cooperation with foreign reporting offices itself.
A. Background
5 When dealing with Article 30 AMLA, it is important to note that it did not come into force until November 1, 2013. This means that for the first 16 years of its existence, MROS was not authorized to exchange financial information, such as account holder, account number or transaction details, with foreign partner authorities due to banking secrecy and official secrecy. This was despite the fact that MROS is the Swiss Financial Intelligence Unit. Consequently, the entry into force of Article 30 AMLA, in addition to the new powers it granted to the Swiss reporting office, is noteworthy in that this new article removed the primacy of bank-client confidentiality and official secrecy when exchanging information between MROS and foreign reporting offices. Before November 1, 2013, the Swiss reporting office's international exchange of information was based on Art. 32 para. 2 AMLA and essentially consisted of personal data and information on criminal proceedings pending in Switzerland, with reference being made to other channels, such as the police or mutual legal assistance channels. Art. 32 para. 2 AMLA, which had become redundant due to the new Art. 30 AMLA, was deleted without replacement.
6 The entry into force of Art. 30 AMLA was preceded by strong international pressure. In February 2012, the Financial Action Task Force (FATF, also known by its French name Groupe d'Action Financière, GAFI for short) revised its recommendations to the effect that reporting offices must be allowed to exchange all information, including financial information. According to the revised wording and the interpretative notes, this now explicitly included the financial information contained in the reports of financial intermediaries. This revision by the FATF regarding the exchange of financial information conflicted with Swiss banking secrecy and official secrecy. As a result, the option of passing on financial information was only introduced at MROS very late in international comparison. It was the last reporting office in the Egmont Group to receive this extension of competence – otherwise it would have been threatened with exclusion from the Egmont Group. However, Switzerland had an independent interest in being able to exchange financial information across borders. Foreign reporting offices could refuse to provide MROS with financial information as long as they did not provide such information themselves. This was detrimental to the efficient and successful fight against money laundering and its predicate offenses, organized crime and terrorist financing.
7 Article 30 AMLA not only gave MROS the ability to exchange financial information with foreign partner authorities, but also the authority to regulate cooperation with foreign FIUs itself (para. 6). In practice, this is a memorandum of understanding (MoU). Prior to November 1, 2013, the approval of MoUs with other reporting offices was reserved for the Federal Council.
B. Exchange of information between FIUs
1. International dimension of reports
8 The exchange of information between reporting offices is of central importance for the efficient combating of money laundering and its predicate offences, organised crime and terrorist financing at the national and international level. This importance is evident from the fact that the majority of reports submitted to MROS have an international dimension. In accordance with Article 23 AMLA, MROS analyzes the suspicious activity reports submitted by Swiss financial intermediaries and decides whether to file a report with a Swiss law enforcement agency. The difficulty for MROS often lies in identifying the predicate offense that could have preceded the suspected money laundering. If the report shows a connection to a foreign country, MROS can resort to the fast and uncomplicated way of exchanging information internationally between reporting offices. This allows MROS to obtain potentially relevant information from abroad and to incorporate it into the report to a Swiss law enforcement agency. The exchange of information is either initiated by a request from MROS or can be made spontaneously by partner FIUs abroad, which independently forward potentially relevant information with a Swiss connection to MROS (spontaneous information).
2. Purpose
9 The information originating from a foreign FIU and forwarded by MROS to a Swiss law enforcement agency considerably simplifies any international letters rogatory by the Swiss law enforcement agencies. In this way, MROS can obtain key information (in practice, this is mostly financial information) through the exchange of information in a fast and efficient way, compared to the often lengthy and formal process of requesting mutual legal assistance. Supporting international mutual legal assistance is one of the main objectives of FIU exchanges.
10 In this context, the Swiss reporting office may decide to send the information contained in the report to a foreign reporting office instead of to a Swiss law enforcement agency. This makes particular sense if proceedings are already pending abroad in relation to the facts of the case or if it must be assumed that the Swiss law enforcement agency will not take action. In this situation – as well as when MROS responds to inquiries from foreign partner authorities – the often underestimated added value of information from reports submitted by Swiss financial intermediaries that is not forwarded to a Swiss law enforcement agency becomes apparent. The added value of MROS thus consists not only of its often-cited “filter function” between financial intermediaries and law enforcement authorities, but also of the targeted exchange of relevant financial information with foreign partner authorities. In this context, the information transmitted by the Swiss reporting office to foreign FIUs is of central importance, not only for the analysis carried out independently by the foreign reporting office or for the initiation of criminal proceedings, but above all for enabling or completing requests for mutual legal assistance from abroad to a Swiss authority.
3. Extended powers of MROS
11 The entry into force of Article 11a, para. 2bis AMLA on July 1, 2021 must be mentioned as a major milestone in MROS's cooperation with foreign reporting offices. Since that date, the Swiss reporting office has been able to request further information from financial intermediaries subject to the AMLA on the basis of information received from abroad (in particular spontaneous information and inquiries). This authority has expanded the powers of MROS to facilitate targeted and effective cooperation with foreign partner authorities. Before Article 11a Para. 2bis AMLA came into force, MROS was only allowed to request information from financial intermediaries subject to the AMLA when this information was related to a SAR that had already been received.
4. Egmont Group
12 The Egmont Group was founded in 1995 to ensure that the exchange of information between reporting offices is secure and rule-based despite the more informal nature of mutual assistance requests. MROS has been a member since it was founded in 1998. As of August 2024, a total of 177 FIUs were members of the Egmont Group – and the trend is rising. These 177 members cover all regions of the world, although there are still some gaps on the map, particularly in Asia and Africa. FIUs that are members of the Egmont Group can exchange information via the Egmont Secure Web, an electronic communication system. It should be noted that neither Art. 30 AMLA nor any other article of the law limits MROS to exchanging information only with members of the Egmont Group. Rather, the message regarding the amendment of the Anti-Money Laundering Act of June 27, 2012, clarifies that Article 30 AMLA applies to the exchange of information with the reporting offices of the Egmont Group as well as with the FIUs of all other countries. In practice, however, MROS only exchanges information with members of the Egmont Group. The main reasons for this are, on the one hand, the “seal of quality” that Egmont Group membership lends to foreign reporting offices and, on the other hand, the communication channel provided by Egmont Secure Web. Depending on the circumstances and the characteristics of the foreign reporting office (e.g. independence from other authorities, internal organization or compliance with data protection), a response to a request from a FIU that is not a member of the Egmont Group will be considered if this serves the interests of MROS.
13 The Principles for Exchange of Information between Financial Intelligence Units, which are binding on the members of the Egmont Group, ensure that FIUs exchange information on combating money laundering, associated predicate offences, organized crime and terrorist financing in a fast, constructive and effective manner. In the worst case, failure to comply with the binding principles can lead to the exclusion of a reporting office from the Egmont Group.
II. Disclosure of information to foreign reporting offices (para. 1)
A. Requirements for the exchange of information with foreign FIUs
14 The first paragraph of Article 30 AMLA, together with paragraphs 2 and 3, governs the transmission of information from MROS to a foreign FIU. Para. 1 lists five preconditions that must be cumulatively fulfilled before the Swiss reporting office can pass on information to the partner authority abroad.
B. Types of information
15 In principle, MROS can exchange information with a partner FIU on any subject (i.e. financial information, personal data, police information) that it already has either through the receipt of reports of suspicions pursuant to Art. 9 AMLA (reporting requirement) or Art. 305ter para. 2 SCC (right to report) or that it can obtain by means of Art. 11a para. 1–2bis AMLA and Art. 29 para. 2 AMLA.
1. Financial information
16 In practice, the focus is clearly on the exchange of financial information. This generates the greatest added value in MROS's cooperation with foreign FIUs, since this information is usually only available at the national level at MROS or can only be obtained from it. In this context, Art. 11a para. 2bis AMLA, which was mentioned in Chapter I.B.3., undoubtedly makes the greatest contribution to this added value in the exchange of financial information with partner FIUs. Before this MROS competence came into force on July 1, 2021, the international exchange of information via the FIU channel, which is based on reciprocity, was impaired. Since the entry into force of Art. 11a para. 2bis AMLA, the exchange with partner FIUs has improved considerably, which is also of great importance for Switzerland in the fight against money laundering at the national level (it should be noted here that the majority of suspicious activity reports from Swiss financial intermediaries have an international connection).
2. Personal data and police information
17 The exchange of personal data or police information primarily involves the exchange between police authorities, even though the Swiss FIU also transmits such information, which it obtains through access to various judicial and police databases. This occurs primarily in cases in which no prior exchange between police authorities has taken place, in which the requesting FIU specifically asks for it or in combination with financial information. In principle, the focus when analyzing FIU requests is on answering them – so mainly the information that covers the questions asked is transmitted to the corresponding partner FIU.
C. Use for analytical purposes in the fight against money laundering (lit. a)
18 Para. a is the first of five cumulative conditions that must be met in order for MROS to share information with partner FIUs. This first condition can be subdivided into two separate, yet interdependent, conditions: firstly, the information may only be used by the foreign FIU for analytical purposes (in the international exchange of information between FIUs, this is referred to as “for intelligence purposes only”), and secondly, this information may only be used in the context of combating money laundering and its predicate offenses, organized crime or terrorist financing.
1. Exchange of information for analysis purposes
19 In the case of cooperation between FIUs, information is generally only exchanged for analysis purposes. This means that the information may be used for analysis, investigations and/or to obtain investigative leads, but not as evidence or to support evidence. For the latter, the mutual assistance route must always be taken. Mutual assistance must never be circumvented through the exchange between reporting offices (the reason for this is to safeguard the rights of persons who are the subject of a request for mutual assistance), and for reasons of efficiency, double channelling (simultaneous exchange of the same information via the FIU and mutual assistance channels) must always be avoided.
2. Money laundering reference
20 The second condition in a) is more complex. In principle, it means that the FIU request must contain information that explicitly or implicitly describes money laundering activities or indicates a predicate offence to money laundering, organized crime or terrorist financing. It should be emphasized that the explicit condition that the predicate offence must be “under Swiss law” is not a requirement stipulated by the legislator when information is exchanged between FIUs. In Art. 30 para. 4 let. b AMLA – only when it comes to the disclosure of MROS information by the partner FIU to foreign third-party authorities – this becomes a requirement. In practice, however, the partial condition “in the context of combating money laundering and its predicate offenses, organized crime or terrorist financing” is interpreted according to Swiss law. In Switzerland, according to Art. 305bis para. 1 SCC, predicate offenses for money laundering are all acts in relation to assets that originate from a crime according to Art. 10 para. 2 SCC or from a qualified tax offense according to Art. 305bis para. 1bis SCC. However, the partner FIU does not have to explicitly state the predicate offense in its FIU request – it is sufficient if possible money laundering activities can be inferred from the facts of the case as stated in the information letter. The partner FIUs, with their core competence of forwarding substantiated suspicious cases to law enforcement authorities, are often at an early stage of analysis and do not yet have any definite evidence to definitively determine the predicate offense. In principle, the indicators of money laundering contained in the appendix to AMLO-FINMA are used by analogy. If no explicit predicate offense is mentioned in an FIU request, MROS can exchange information with a partner FIU for analysis purposes (if necessary, also to determine the predicate offense). However, if the partner FIU explicitly mentions a predicate offense that is not a predicate offense for money laundering under Swiss law, and if no other connection to a crime can be established (for example, through the existence of a report from a Swiss financial intermediary), MROS does not pass on any information in this regard to the requesting partner FIU.
21 Each jurisdiction has its own laws and thus also different predicate offenses for money laundering. However, a similar concept of money laundering and its predicate offenses also prevails at the international level. The FATF lists a number of offenses in the appendix of its recommendation document, which sets minimum requirements for predicate offenses to money laundering (“Designated categories of offenses”). In practice, MROS conducts in-depth clarifications for two offenses before it delivers information to a foreign reporting office or grants permission to pass it on to foreign third-party authorities: tax offenses and sanction evasion. In the event of such suspicions, the Swiss reporting office clarifies in advance whether or not the case analyzed abroad actually falls under a money laundering offense in Switzerland.
D. Reciprocity principle (b)
22 The FIU exchange is always a give and take. A reporting office is expected to exchange with its foreign partners the information that it can obtain under the law applicable in its country. This is anchored in law in the principle of reciprocity of lit. b. As a general principle of international law and a basic principle of both the FATF (Recommendation 40) and the Egmont Group (Principles for Information Exchange between Financial Intelligence Units), a state is allowed to make its behavior towards another state dependent on the behavior of that state in a similar situation. Consequently, an FIU could refuse to cooperate, for example due to a lack of reciprocity or repeated inadequate cooperation. In such cases, MROS can only base its decision on its expectations and previous experiences with the partner FIU. In practice, this is not always easy due to the different types of FIUs (police, judicial, administrative) and the associated differences in their competencies (e.g. some FIUs can freeze assets while others cannot). Ultimately, however, the common goal of all FIUs is to combat money laundering and its predicate offenses, organized crime and terrorist financing. This also means that FIUs provide certain information even if they know that their partner FIU cannot do so due to a lack of authority in this area. However, point b) creates the possibility for MROS to adapt its behavior towards a foreign FIU or not to have to exchange certain information if it finds that the partner FIU intentionally and systematically fails to provide information that it could obtain under its legal framework. In order for the Egmont Group FIUs to have an overview of the type of FIU and the existing competencies of their partner FIUs, the so-called “Egmont Biennial Census” exists, which is completed and updated by all FIUs every two years.
E. Official or professional secrecy (lit. c)
23 This provision also represents a fundamental principle of the FATF and the Egmont Group (Principles for Information Exchange between Financial Intelligence Units). It stipulates that all FIU employees must have legally committed themselves to maintaining official and professional secrecy and must have been sufficiently instructed about the associated obligations.
F. Prohibition on disclosure without explicit consent (lit. d)
24 Point d) stipulates that a FIU may not disclose information received to third parties without the explicit consent of MROS. The basis for this provision is also found in the Principles for Information Exchange between Financial Intelligence Units of the Egmont Group. The conditions for forwarding information transmitted by MROS to a partner FIU to foreign third-party authorities are governed by Article 30, paras. 4 and 5 AMLA. The reason lit. d is so important is that the FIU information exchange is only ever used for analysis purposes and is intended to prevent this information from being passed on to authorities that could misuse it as evidence. This ensures that the source of the information, i.e. the transmitting FIU, has control over the forwarding and use of the information after it has been transmitted to a partner reporting office. In practice, however, this requires a certain degree of trust, which is generally present between the members of the Egmont Group (and must be present for an efficient FIU information exchange). The Egmont Group also ensures that this provision is adhered to and takes repressive measures in the event of a violation (by initiating a non-compliance procedure in accordance with the Egmont Group Support and Compliance Process). Furthermore, the foreign FIU would have to bear the consequences of a breach of trust and would no longer receive any information from MROS for the time being – a consequence that should not be underestimated, given the importance of the Swiss financial center. A resumption of the exchange of information between the Swiss reporting office and the affected FIU would only be possible if a satisfactory explanation for the failure to comply with this provision was provided and appropriate measures were taken to prevent such a breach in the future.
G. MROS's option to impose further conditions and restrictions on use (lit. e)
25 Para. e clarifies that the provisions in let. a–d are not exhaustive conditions, but that the Swiss reporting office can impose further conditions and restrictions on use on a partner FIU, both in individual cases and as standard. However, this is only possible if MROS ensures compliance with all legal requirements (international standards, principles of administrative assistance, Egmont Principles, etc.). Thanks to this provision, no legal changes are needed should the Swiss reporting office's disclaimer need to be modified.
26 Para. e thus also provides the legal basis for the MROS disclaimer. This is added to every information letter from the Swiss FIU and varies depending on whether or not permission is granted to forward information to foreign third-party authorities of a partner FIU. The MROS disclaimer is in itself a summary of the requirements of Art. 30 para. 1 and para. 4 AMLA and also states that MROS must always be protected as a source of information.
III. Examples of information to be transmitted (para. 2)
A. Exchange of financial information
27 Para. 2 lists non-exhaustive examples (“in particular”) of the various types of information that MROS can transmit to foreign partner authorities. At the same time, it forms the legal basis for the exchange of financial information with foreign FIUs, making para. 2 the central component of Art. 30 AMLA, which came into force on November 1, 2013. This exchange of financial information is generally the most valuable part of the FIU information exchange, as this information is usually only available from the FIUs or can often only be obtained from them (especially so quickly). The fact that one paragraph (Art. 30 para. 2 AMLA) is explicitly and exclusively dedicated to the exchange of financial information illustrates its importance (personal data, on which the FIU exchange by MROS was mainly based before the introduction of Art. 30 AMLA, is only briefly mentioned in para. 1 of Art. 30 AMLA).
28 Paras. a–d are examples of financial information that can be exchanged under this law. The legislator deliberately kept the list of such financial information open. Art. 30 para. 1 AMLA already allows MROS to transmit all available information to its foreign partner authorities. A restriction to certain categories of financial information would run counter to the goal of making the most comprehensive use of all available information in the analysis phase. In addition to the content listed under Art. 30 para. 2 lit. a-d AMLA, there is further financial information that MROS can pass on to a foreign partner FIU under this law. The additional financial information most frequently requested in practice includes information on authorized signatories, authorized agents, controlling persons, the balance of the assets involved, and KYC (Know Your Customer) information.
29 MROS obtains this financial information in two ways. Firstly, it receives suspicious activity reports from Swiss financial intermediaries in accordance with Art. 9 para. 1 AMLA or Art. 305ter para. 2 SCC, or from dealers in accordance with Art. 9 para. 1bis AMLA, which are then forwarded to MROS. On the other hand, the Swiss FIU can request information from financial intermediaries or dealers under Art. 11a AMLA. MROS's exchanges with national authorities under Art. 29 para. 1 and 2 AMLA also constitute a source of information that can be transmitted to foreign FIUs.
B. Name of the reporting person (lit. a)
1. Maintaining anonymity
30 In order to exchange financial information in a meaningful and efficient way, it is often essential to pass on the name of the financial intermediary with whom a business relationship exists. A possible request for mutual assistance from a foreign country to a Swiss public prosecutor requires the name of the financial institution from which financial information is to be requested (otherwise the request could be considered a fishing expedition). If MROS does not provide this information to the foreign FIU, the entire legal assistance process is slowed down or even made impossible. The anonymity of the employees of reporting financial intermediaries or dealers who provide information is a top priority, with Art. 30 para. 2 let. a AMLA being in line with Art. 9 para. 1ter AMLA and Art. 32 para. 3 AMLA. The purpose of this provision is to protect natural persons (i.e. employees of reporting financial intermediaries or those disclosing information) and dealers from possible reprisals as a result of such a report or such information. The Swiss reporting office must refrain from disclosing the name of the financial intermediary if this would compromise the anonymity of the person who submitted a report to the reporting office or who fulfilled an information disclosure obligation under the AMLA. This is particularly the case for smaller financial intermediaries with few employees. If there is a real risk of such a loss of anonymity, MROS must refrain from passing on any information that could be used to identify specific individuals. In case of doubt, MROS has the option of asking the potentially at-risk person for consent.
31 It must be emphasized in this context that the FIU information exchange is about exchanging (financial) information and suspicious facts. The person who submitted the report is not decisive for the FIU information exchange. The key information is that there is a suspicion, with which financial intermediary the business relationship is held, and the findings from the analysis. In practice, this means that the Swiss reporting office does not explicitly mention the name of the reporting financial intermediary, but only passes on the information regarding which financial intermediary maintains the business relationship (even if in most cases the reporting financial intermediary and the one who maintains the business relationship are the same).
2. Duty to provide information
32 Para. a also mentions the “duty to provide information”. This refers to the duty of financial intermediaries and dealers to transmit information to MROS that the latter has requested on the basis of Art. 11a AMLA. In addition to suspicious activity reports, this duty to provide information under Art. 11a AMLA is the main national source of financial information. a) of the AMLA states that MROS may in theory pass on the name not only of the financial intermediary or trader who submitted a report to a foreign reporting office, but also of those who have been requested by the Swiss FIU to provide information in accordance with Art. 11a AMLA (to preserve anonymity, see Chapter III.B.1.). In practice, the same procedure applies here as for reporting financial intermediaries or dealers: in principle, only information regarding the account-holding financial intermediary is forwarded to a partner FIU, and not specifically who has issued the information.
C. Further examples of financial information (lit. b–d)
33 Para. b–d list further examples of financial information that may be passed on to a partner FIU under this Act. The main information regarding the account holder's business relationships, account number, account balances, beneficial owners and information on transactions is mentioned, although this is not an exhaustive list. The financial information listed in b) to d) is an important part of the information exchanged between the Swiss reporting Office and its foreign partners.
IV. Reporting form (para. 3)
34 The form of the information exchanged between MROS and foreign reporting offices is governed by Art. 30 para. 3 AMLA. This states that the Swiss FIU may only transmit information that it has or can obtain to a partner authority abroad in report form. Conversely, this means that MROS does not share any original documents with the foreign FIU – FIUs are bound by the prohibition on the use of evidence. This is due to the fact that under no circumstances should cooperation between reporting offices circumvent or replace international mutual legal assistance. Original documents for use as evidence must be obtained through mutual assistance, while for the FIU's analysis tasks, for the initiation of criminal proceedings or to enable or complete a mutual assistance request, information in report form is sufficient.
35 The Swiss reporting Office is required by the requirement of the report form to limit itself to the essential information. In addition to the created information report, the MROS shares in practice attachments with foreign FIUs. These are, among other things, publicly available information, such as excerpts from the Swiss commercial register (Zefix). Due to the often extensive and complex transactions that FIUs have to analyze, MROS also sends attachments with the relevant transactions that allow the foreign FIUs to process the information contained therein more efficiently.
V. Forwarding to a foreign third authority (para. 4)
A. General
36 Para. 4, which can be understood together with para. 5 as the second thematic part of Art. 30 AMLA, lists the requirements that a foreign third-party authority must fulfill in order to receive information from MROS via a foreign FIU. In this context, the partner FIU must obtain the prior consent of MROS before forwarding information to foreign third-party authorities, as already provided for in Art. 30 para. 1 let. d AMLA (see N. 24). This provision is therefore a prerequisite for the general exchange of information between FIUs. The conditions for the authorization of the forwarding of information to foreign third-party authorities (Art. 30 para. 4 AMLA) and those for the exchange of information between FIUs (Art. 30 para. 1 AMLA) are similar. It should be emphasized that Art. 30 para. 4 AMLA contains the additional restriction that the information passed on may only be used to prosecute offenses that constitute a predicate offense to money laundering under Swiss law.
37 The ultimate goal of forwarding information that a foreign FIU has received from MROS and in turn forwards to a third-party authority is to effectively combat criminal behavior. With their analytical work on money laundering phenomena, the FIUs perform crucial preliminary work for the downstream prosecuting authorities, which require the intelligence provided by the FIUs to conduct criminal proceedings and international mutual legal assistance proceedings. The sharing of information with third-party authorities, such as a police force or public prosecutor, is therefore essential for the prosecution of money laundering and its predicate offences, organised crime and terrorist financing.
38 In practice, MROS gives its consent to the forwarding of information in response to a request from a foreign FIU, although under certain circumstances, proactive consent is also conceivable. This makes sense, for example, when spontaneously sending information to a foreign FIU or in urgent cases, so that the information transmitted abroad can be used efficiently and effectively.
B. Possible uses of the information by a foreign third authority (lit. a)
39 Under lit. a, nos. 1–2, the two possible uses of the information transmitted by MROS are set out. These are exhaustive alternative conditions to be met and at the same time specify what is meant by the term 'third authority'.
1. Forwarding for analysis
40 In no. 1, the forwarding to foreign third authorities for analysis purposes in the context of combating money laundering, its predicate offences, organized crime and terrorist financing is stipulated. In principle, the FIUs carry out their analysis tasks themselves. However, it may be that the foreign FIU calls on the support of third authorities in the analysis of information. In this context, the main consideration is specialized central offices of the criminal police that have expertise in certain types of financial crime. Intelligence authorities are not covered by this definition, which is why forwarding to them is not permitted. The purpose of forwarding the information is to detect or prosecute criminal offences and is not preventive in nature, as is the case, for example, when intelligence authorities are involved.
2. Forwarding for law enforcement purposes
41 No. 2 governs the disclosure to foreign third-party authorities for the purpose of either initiating criminal proceedings for money laundering, predicate offences, organized crime or terrorist financing, or to substantiate a request for mutual assistance in the context of such criminal proceedings. In this context, it is mainly the prosecuting authorities that fulfill these purposes intended by the legislator. MROS draws the foreign FIU's attention to the competencies that the third-party authority must have in the disclaimer attached to the information letter. It seems unrealistic in practice to check whether each foreign third-party authority corresponds to a Swiss prosecution authority in accordance with Art. 12 CrimPC. The wording of no. 2 is adopted in the disclaimer mentioned above, according to which the authority must be entrusted with combating money laundering, its predicate offenses, organized crime or terrorist financing.
C. Dual criminality (lit. b)
1. MROS practice
42 Art. 30 para. 4 lit. b AMLA states that MROS may not authorize a foreign reporting office to forward a report to a third-party authority if the suspicions obviously do not reveal any predicate offense to money laundering under Swiss law. The double criminality will be a definite requirement. The respective legal provisions do not have to be identical – it is sufficient if the actions described in the information letter are punishable under the applicable law of both countries (under Swiss law, it must be a crime or a qualified tax offense, otherwise it cannot be classified as a predicate offense to money laundering). Furthermore, the predicate offense does not have to be explicitly mentioned by the foreign FIU (even if this is preferred in practice) – it is sufficient if it is apparent from the facts of the information letter. In case of doubt, MROS always has the option of obtaining further information regarding the suspected predicate offense from the foreign partner authority.
2. Difference to Art. 30 para. 1 let. a AMLA
43 As soon as the matter concerns a transfer to a foreign third-party authority, the legislator is stricter than it is when it comes to the exchange of information between FIUs. As already mentioned in chapter II.C.2, the condition that the predicate offense to money laundering must be “under Swiss law” as stated in Art. 30 para. 4 let. b AMLA, is not an explicit requirement for the exchange of information between FIUs. Due to the fact that FIUs are involved in the analysis of suspicious cases at an early stage of the detection of criminal acts, MROS can generally provide the information to the foreign FIU for internal analysis (see Chapter II.C.).
D. Prohibition on using the information as evidence (c)
44 Art. 30 para. 4 let. c AMLA explicitly states that the information from MROS may not be used as evidence, but only for information purposes. This is particularly important for the prosecution authorities mentioned in Art. 30 para. 4 let. a no. 2 AMLA. Evidence must always be obtained through mutual assistance. It is also clearly stated that mutual assistance should never be circumvented. As stated in Art. 30 para. 4 let. a no. 2 AMLA, the exchange of information between FIUs supports mutual assistance, but in no way replaces it.
E. Official or professional secrecy (let. d)
45 Art. 30 para. 4 let. d AMLA is the equivalent of Art. 30 para. 1 let. c AMLA and stipulates that the foreign third-party authority must also maintain official and professional secrecy or that its personnel must be subject to it.
VI. Requirement for authorization in the event of Swiss criminal proceedings (para. 5)
A. General
46 The fifth paragraph of Article 30 AMLA stipulates that the MROS must obtain permission from a Swiss public prosecutor to pass on information to a foreign third-party authority if criminal proceedings are pending with that public prosecutor on the same facts. It should be emphasized that Article 30 para. 5 AMLA does not apply to the exchange of information between the MROS and a foreign FIU. Rather, it concerns the transmission of information originating from MROS to a foreign third authority via a reporting office abroad. This provision must therefore always be considered in conjunction with Art. 30 para. 4 AMLA.
B. Priority of Swiss criminal proceedings
47 The idea of the legislator in this paragraph was to give Swiss criminal proceedings priority over foreign ones, in order to prevent information forwarded by MROS to a foreign FIU and then forwarded to a third authority from affecting ongoing criminal proceedings in Switzerland. Such a situation is conceivable based on the legal principle of “ne bis in idem”. If a foreign prosecuting authority were to receive significant information on a matter that is already the subject of criminal proceedings in Switzerland, and if the foreign prosecuting authority were to reach a conclusion of proceedings more quickly than the Swiss authorities, the work of the Swiss public prosecutor's office would, under certain circumstances, have been in vain due to the ne bis in idem principle. Another conceivable scenario in which Art. 30 para. 5 AMLA generally gives priority to Swiss criminal proceedings is where the criminal proceedings are not yet public and coercive measures are planned. Forwarding the information to a foreign third authority could lead to the suspect becoming aware of the Swiss criminal proceedings, which could adversely affect them.
48 If the competent Swiss public prosecutor does not authorize the disclosure of the information by the foreign FIU to a third authority in the same country because it fears the above-mentioned influence on its criminal proceedings, the Swiss reporting office may not grant permission to forward the information in its information letter to the foreign FIU. In this case, it attaches the disclaimer without permission to forward information to third authorities.
C. Sources of information
49 The information that criminal proceedings are pending in Switzerland against a natural or legal person mentioned in the information letter from MROS to a foreign FIU is communicated to the Swiss FIU either by the decisions to open proceedings, which it receives from Swiss public prosecutors, or through its access to various judicial and police databases. However, due to the fragmentation of the databases of the Swiss law enforcement agencies, it is questionable whether MROS is actually aware of every ongoing criminal proceeding in Switzerland. This problem is exacerbated by the fact that the prosecuting authorities in Switzerland often do not provide the reporting office with sufficient information about all pending proceedings related to Art. 260ter, Art. 260quinquies para. 1, Art. 305bis and Art. 305ter para. 1 SCC, as they should according to Art. 29a para. 1 AMLA .
D. MROS practice
50 When MROS is aware of a criminal proceeding in Switzerland involving natural or legal persons who are the subject of a letter from MROS to a foreign FIU, it contacts the prosecutor in charge. This contact is most often made by telephone. The purpose of this contact is to find out whether the subject of the pending criminal proceedings is the same subject as the one that is the subject of a request for forwarding. Only in such a case does the Swiss public prosecutor have the authority to actually refuse permission to forward the information to foreign third-party authorities.
51 In practice, MROS also contacts the relevant Swiss public prosecutor to find out whether the foreign prosecuting authority that is to receive the information according to the foreign FIU has already received or will receive this information through the judicial assistance process (based on an existing request for judicial assistance from abroad or based on spontaneous judicial assistance from a Swiss public prosecutor (Art. 67a IMAC)). If this is the case, MROS generally refrains from transmitting the information for reasons of efficiency. In such a scenario, MROS informs the foreign reporting office that the law enforcement agency in the corresponding country has received or will receive the requested information directly.
VII. Memorandum of Understanding (para. 6)
A. MROS's authority to conclude
52 Para. 6 of Art. 30 AMLA authorizes the Swiss reporting office to independently regulate the modalities of cooperation with foreign FIUs. In practice, this is a so-called Memorandum of Understanding (MoU, also known as a declaration of intent). Since Article 30 AMLA came into force, the head of MROS has signed such MoUs independently, whereas before November 1, 2013, a declaration of intent between the Swiss reporting office and a foreign FIU had to be approved by the Federal Council.
53 The Interpretative Note to FATF Recommendation 29 explicitly requires that FIUs have the authority to enter into MoUs independently: “The FIU should also be able to make arrangements or engage independently with other domestic competent authorities or foreign counterparts on the exchange of information.”
B. Reasons for an MoU
54 There are various reasons why FIUs may wish to conclude MoUs with foreign partner authorities. These reasons can be divided into two categories:
(1) An FIU may need a memorandum of understanding with foreign partner authorities by law. Without such an agreement, the exchange of information is not possible;
(2) A FIU may need a memorandum of understanding with a foreign partner authority in order to exchange information by law. However, it would like to specify the terms of its cooperation with its counterparts. This can be done by resorting to a general MoU without specifically addressing the particulars of the exchange of information with the other FIU, or by specifying the specifics arising from the cooperation with the foreign FIU in the memorandum of understanding (e.g. mentioning the fight against a specific predicate offense to money laundering).
C. MROS practice
55 MROS is in the comfortable position of being able to exchange a wide range of (financial) information, without the need for an MoU to govern the details of its cooperation with the foreign partner authority. In addition, the time required for MROS to conclude a memorandum of understanding should not be underestimated. Consequently, in practice the Swiss FIU mainly signs MoUs with foreign partner authorities that require such a memorandum of understanding by law. In such a case, a memorandum of understanding is also in the interests of MROS, as the foreign FIU cannot provide MROS with information without an MoU.
56 If a foreign FIU requests MROS to sign a memorandum of understanding, the Swiss reporting office first clarifies whether the foreign partner authority actually needs such a memorandum by law. MROS requests the relevant passage of law from the counterpart and decides whether the conditions required by the Swiss reporting office for the conclusion of an MoU are met. If the foreign FIU does not require such a declaration of intent by law, but would like to regulate cooperation in more detail, MROS clarifies whether this is also in its interest. In both cases, MROS reviews the memorandum of understanding proposed by the foreign FIU. In doing so, it ensures, above all, that the legal requirements (in particular Articles 30 and 31 AMLA) are met. Before the final signature by the head of the Swiss reporting office, MROS consults with the Federal Department of Foreign Affairs (FDFA) and the State Secretariat for International Finance (SIF). This ensures that the concluded MoUs are embedded in Switzerland's foreign and foreign trade policy efforts.
57 As of August 2024, MROS had signed MoUs with around a dozen foreign FIUs.
Bibliography
Berger Corinne, Kommentierung zu Art. 30 GwG, in: Hsu Peter Ch./Flühmann Daniel (Hrsg.), Basler Kommentar, Geldwäschereigesetz, Basel 2021.
Beuret Arnaud, Kommentierung zu Art. 30 GwG, in: Kunz Peter V./Jutzi Thomas/Schären Simon (Hrsg.), Stämpflis Handkommentar, Geldwäschereigesetz, Bern 2017.
Materials
Botschaft zur Änderung des Geldwäschereigesetzes vom 27.6.2012, BBI 2012 S. 6941 ff., abrufbar unter https://www.fedlex.admin.ch/filestore/fedlex.data.admin.ch/eli/fga/2012/1031/de/pdf-a/fedlex-data-admin-ch-eli-fga-2012-1031-de-pdf-a.pdf, besucht am 1.8.2024 (zit. Botschaft GwG 2012).
Egmont Group of Financial Intelligence Units, Egmont Group of Financial Intelligence Units Charter, Juli 2013, https://egmontgroup.org/wp-content/uploads/2021/09/Egmont-Group-Charter-Revised-July-2023-Abu-Dhabi-UAE.pdf, besucht am 1.8.2024.
Egmont Group of Financial Intelligence Units, Principles for Information Exchange between Financial Intelligence Units, Oktober 2013, https://egmontgroup.org/wp-content/uploads/2022/07/2.-Principles-Information-Exchange-With-Glossary_April2023.pdf, besucht am 1.8.2024.
Egmont Group of Financial Intelligence Units, Annual Report 2020/2021, 2022, https://egmontgroup.org/wp-content/uploads/2022/10/EGMONT_21-267_2020%E2%80%932021_AR-E_WEB.pdf, besucht am 1.8.2024.
Financial Action Task Force (FATF), International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, 2012, FATF Recommendations 2012.pdf.coredownload.inline.pdf (fatf-gafi.org), besucht am 1.8.2024.
Meldestelle für Geldwäscherei (MROS), Jahresbericht 2020, Mai 2021, https://www.fedpol.admin.ch/fedpol/de/home/kriminalitaet/geldwaescherei/publikationen.html, besucht am 1.8.2024.
Meldestelle für Geldwäscherei (MROS), Jahresbericht 2022, Mai 2023, https://www.fedpol.admin.ch/fedpol/de/home/kriminalitaet/geldwaescherei/publikationen.html, besucht am 1.8.2024.
Meldestelle für Geldwäscherei (MROS), Jahresbericht 2023, Mai 2024, https://www.fedpol.admin.ch/fedpol/de/home/kriminalitaet/geldwaescherei/publikationen.html, besucht am 1.8.2024.