I. General

1 Art. 8 stipulates that financial intermediaries must take the necessary measures in their field to prevent money laundering and terrorist financing. These include, but are not limited to (“in particular”), adequate training of personnel and controls. This is to ensure that the provisions of the AMLA are complied with throughout the entire business. Due to the clear wording of the law, Art. 8 AMLA applies only to financial intermediaries in accordance with Art. 2 para. 1 let. a AMLA, but not to dealers in accordance with Art. 2 para. 1 let. b AMLA.

2 The content and purpose of the standard are disputed in legal doctrine. Some legal scholars are of the opinion that Art. 8 AMLA represents an independent due diligence requirement in that it requires financial intermediaries to establish an organization that prevents money laundering and terrorist financing to the greatest extent possible. Another school of thought interprets Art. 8 AMLA as a pure implementing provision that serves to implement the due diligence requirements in Art. 3–7 AMLA. Jutzi combines the two views and assumes a hybrid function of Art. 8 AMLA. In his opinion, Art. 8 AMLA is an independent due diligence requirement based on a systematic and grammatical interpretation. This means that it is, on the one hand, a provision for implementing the other due diligence requirements of the AMLA and, at the same time, an independent due diligence requirement. The message on the AMLA does not help with the interpretation, but only repeats the legal text. According to the view presented here, Art. 8 AMLA is embedded in Chapter 2 of the AMLA (and thus in the due diligence requirements), but in most cases has no independent significance. Art. 8 AMLA serves to ensure consistent compliance with the due diligence requirements. Accordingly, in practice it is hardly possible for Art. 8 AMLA to be violated in isolation. A violation of Art. 8 MLA is usually accompanied by a violation of another due diligence requirement of the MLA in the narrower sense (e.g. the documentation requirement or the reporting requirement). For example, it may happen that the contracting party is not correctly identified because the training concept or the instructions were insufficient. In order for a financial intermediary to be able to consistently comply with the obligations, it is often a prerequisite that Art. 8 AMLA be fulfilled. According to the view presented here, Art. 8 AMLA is a due diligence obligation, but, strictly speaking, it is hardly independent.

3 The scope of the standard, i.e. the scope and type of organizational measures to be taken in connection with the prevention of money laundering and terrorist financing, are not specified in Art. 8 AMLA. However, the measures are described in detail in the FINMA Anti-Money Laundering Ordinance. For financial intermediaries supervised by self-regulatory organizations (Art. 2 para. 3 AMLA), the implementing provisions can be found in the regulations of the responsible self-regulatory organization. The risk-based approach applies when implementing Art. 8 AMLA. Depending on the size and area of activity of a financial intermediary, these can vary greatly. It can be seen from Art. 8 AMLA that the financial intermediaries must take action in “their area”. The organizational measures must therefore relate to financial transactions within the meaning of Art. 1 AMLA and/or financial intermediary activities; it must be ensured that the necessary organizational competence (factual and formal) is vested in the most senior executive body in these areas. According to Federal Supreme Court rulings, the organizational measures must also be documented. The duty under Art. 8 AMLA is therefore a permanent duty that must always be observed. The measures taken must be regularly evaluated and, if necessary, adapted.

II. Organizational measures in detail

4 Art. 23 ff. AMLO-FINMA substantiate Article 8 AMLA and explain the “organizational measures” mentioned. These will be discussed individually below. It should be noted that certain special laws (e.g. Article 3 paragraph 2 letter a Banking Act) contain organizational provisions that also cover the fight against money laundering. These will not be discussed further in this commentary.

A. New products, business practices and technologies (Art. 23 MLO-FINMA)

5 Pursuant to Art. 23 MLO-FINMA, the financial intermediary is responsible for in advance assessing the risks of money laundering and terrorist financing that may arise from the development of new products or business practices or from the use of new or further developed technologies and for adequately recording, limiting and monitoring these risks as part of risk management. Art. 23 MLO-FINMA is an application of Art. 13 para. 2 let. c MLO-FINMA and therefore refers primarily to cases in which there is no personal contact with the contracting party and the beneficial owner, as well as to products, technologies and services related to virtual currencies.

6 As expressly stated in the wording of Article 23 MLO-FINMA, the review must be carried out prior to the launch of new or enhanced products, business practices and technologies. If the review reveals (potential) risks, these must be recorded, limited and monitored by the financial intermediary before making changes to the business model that may give rise to new risks.

B. Money Laundering Reporting Office (Articles 24 and 25 MLO-FINMA)

1. General

7 Arts. 24 and 25 AMLO-FINMA deal with the anti-money laundering unit. This acts as an operational body. Pursuant to Art. 24 (1) AMLO-FINMA, the financial intermediary is required to appoint one or more qualified persons as the anti-money laundering unit. Their main task is to advise and support line managers and management in implementing the AMLO-FINMA. However, this is without taking on responsibility, i.e. overall responsibility clearly remains with the financial intermediary's executive bodies and cannot be outsourced to lower-level employees. This is to prevent members of the management and board of directors of a financial intermediary from shifting the decisions “downwards” in the hierarchy. The board of directors of a joint-stock company has the non-transferable and irrevocable task of supervising the persons entrusted with the management of the company, in particular with regard to compliance with the law (Art. 716a para. 1 no. 5 of the Swiss Code of Obligations). As part of good governance, the anti-money laundering unit must therefore always be empowered by the internal regulations to submit sensitive decisions (e.g. on the continuation of a critical business relationship) to the management. Anything else can lead to a mixing of the compliance function and the commercially or operationally active persons, which in turn can lead to undesirable conflicts of interest. The decision on reports within the meaning of Article 9 AMLA lies with the most senior management body, which may, however, delegate this decision (Article 25a MLO-FINMA, see below, N. 15). In general, the anti-money laundering unit should be as independent as possible from the profit-oriented functions of a company in order to ensure the greatest possible independence and neutrality. On the basis of Article 75 of the AMLO-FINMA, small asset managers are subject to relaxed requirements as compared to Article 24 of the AMLO-FINMA. Fintech institutions as defined in Article 1b of the Banking Act are also eligible for relaxed requirements in accordance with Article 75a (2) of the AMLO-FINMA.

2. Personnel requirements for the anti-money laundering unit

8 In Art. 24 para. 1 AMLO-FINMA, the legislator requires that “qualified persons” be appointed as the anti-money laundering unit. This means that the persons must have completed training in the field of law/compliance that meets the obligation to monitor and address business-specific risks. The appointed persons must have sufficient experience to be able to monitor compliance with the regulations and must also have a certain degree of credibility so that they can represent compliance issues with sufficient certainty and independence vis-à-vis the executive and the commercial or operational departments.

9 In certain cases, it is possible to appoint external persons as anti-money laundering officers as part of an outsourcing arrangement, provided that they are also “knowledgeable” (Art. 25 para. 4 AMLO-FINMA). On the one hand, an external knowledgeable person can and should be designated as an anti-money laundering officer if the financial intermediary cannot set up its own specialist unit due to its size. On the other hand, delegation can also occur when the establishment of an internal anti-money laundering unit would be disproportionate. When mandating external persons, the financial intermediary continues to bear responsibility for the execution of the ordinance (see “under its responsibility” in accordance with Article 25 (4) AMLO-FINMA). This means that it must carefully select, instruct and monitor the external service provider. Any misconduct on the part of the outsourcing service provider will be fully attributed to the outsourcing financial intermediary. If the financial intermediary is a bank, a securities firm or an insurance company, the rules of FINMA Circular 2018/3 must also be observed.

3. Tasks of the anti-money laundering unit

10 The core tasks of the anti-money laundering unit consist, on the one hand, of preparing internal directives for combating money laundering and terrorist financing and, on the other hand, of planning and monitoring the corresponding internal training (Art. 24 para. 2 in conjunction with Art. 25 et seq. AMLO-FINMA). Furthermore, the anti-money laundering unit has a support function, i.e. it supports line managers and the executive bodies in implementing the AMLO-FINMA, without taking responsibility for this away from them (Art. 24 para. 1 second sentence AMLO-FINMA). The directives are issued by the board of directors or the most senior management body. These must be communicated to the persons concerned, i.e. the management and employees of the financial intermediary, in a suitable form (Art. 26 para. 1 AMLO-FINMA).

11 Article 25 AMLO-FINMA lists further tasks of the anti-money laundering unit, although these may also be assumed by another independent specialist unit (Article 25 (1) AMLO-FINMA). The anti-money laundering unit is obliged to monitor compliance with the internal directives on combating money laundering and terrorist financing in consultation with internal audit, the audit firm and line managers (Art. 25 para. 1 let. a AMLO-FINMA). It also defines the parameters for the transaction monitoring system pursuant to Article 20 MLO-FINMA (Article 25 (1) (b) MLO-FINMA) and ensures the careful evaluation of the reports generated by the system (Article 25 (1) (c) MLO-FINMA). In addition, it will initiate or conduct additional clarifications itself in accordance with Article 15 MLO-FINMA (Article 25 (1) (d) MLO-FINMA). Finally, it ensures that the responsible management body has all the information necessary to make well-founded decisions on entering into or continuing business relationships in accordance with Article 19 MLO-FINMA (Article 25(1)(e) MLO-FINMA).

12 Art. 25 para. 2 AMLO-FINMA sets out the risk analysis requirement. It requires the money laundering reporting office or another independent body to prepare a risk analysis taking into account the financial intermediary's area of activity and the type of business relationships it maintains, from the point of view of combating money laundering and terrorist financing. The risk analysis must in turn be approved by the board of directors or the management and updated periodically. The creation and maintenance of the risk analysis is thus a dynamic process that requires financial intermediaries to proactively identify, assess and manage their specific risks related to money laundering and terrorist financing. This analysis goes far beyond a mere review of regulations; rather, it is a strategic tool designed to enable financial intermediaries to strengthen their resilience to financial crime while protecting their reputation.

13 The scope of the risk analysis depends on the size and nature of the financial intermediary's business. The following parameters are taken into account:

• At the heart of risk analysis is a comprehensive view of the company and its environment. Both internal and external factors are taken into account. Internal factors include the products and services offered (expressly mentioned in Art. 25 para. 2 AMLO-FINMA), the organizational structure, IT systems and control mechanisms. External factors relate to the regulatory environment, the economic situation, the political climate and the company's geographical presence.

• An important aspect of risk analysis is knowing one's customers. Financial intermediaries must get to know their customers thoroughly in order to be able to assess their business activities and possible risks. In doing so, they scrutinize both the origin of the customers (registered office or domicile, expressly mentioned in Art. 25 para. 2 MLO-FINMA) and their business relationships. Financial intermediaries must pay particular attention to customers from high-risk countries, PEPs and complex financial products.

• The results of the risk analysis serve as a basis for developing customized risk mitigation measures. These measures may take the form of additional audits, enhanced monitoring measures or employee training, for example. It is important that the measures are regularly reviewed and adjusted to reflect changing circumstances.

• Risk analysis is not only a legal requirement, but can also be a strategic advantage. By proactively managing risk, companies can strengthen their competitiveness and protect their reputation as a reliable partner. In addition, risk analysis helps to increase the efficiency of compliance processes and reduce costs.

14 In summary, risk analysis in the prevention of money laundering is a complex and multifaceted process. It requires a thorough understanding of the applicable regulations, one's own business activities and the constantly changing regulatory and economic situation. Based on the results of the risk analysis, the financial intermediary determines the measures for managing, controlling, monitoring, reporting and supervising these risks. By consistently implementing the risk analysis, financial intermediaries can contribute to the fight against financial crime while protecting their own interests. In 2023, FINMA reviewed the risk analysis processes of over 30 banks and concluded that a significant proportion of the risk analyses examined did not meet the basic requirements for such an analysis. In response, FINMA published Guidance 05/2023 on money laundering risk analysis in accordance with Article 25(2) of the FINMA Anti-Money Laundering Ordinance (AMLO-FINMA) (dated August 24, 2023), in which FINMA transparently presents its practical observations and experiences regarding risk analysis.

C. Decision-making authority for reporting (Art. 25a MLO-FINMA)

15 The financial intermediary's management must decide on the submission of reports in accordance with Art. 9 AMLA (reporting obligation) and Art. 305^ter para. 2 SCC (right to report) (Art. 25a MLO-FINMA). However, this task may be delegated to one or more of its members who are not directly responsible for the business relationship, to the anti-money laundering unit or to a largely independent unit (Art. 25a. para. 2 AMLO-FINMA). If the task is delegated, responsibility for implementing the reporting obligations nevertheless remains with the executive body of the financial intermediary (Art. 24 para. 1 AMLO-FINMA). Art. 25a AMLO-FINMA only allows the delegation of the implementation of the reporting obligation, but does not allow the entire ordinance to be delegated. The responsibility for reporting must be recorded in the financial intermediary's directives (Art. 26 para. 2 let. b MLO-FINMA, see also below, N. 23).

D. Internal directives (Art. 26 MLO-FINMA)

1. General

16 The financial intermediary must issue internal directives to combat money laundering and terrorist financing. These are adopted by the board of directors or the executive board and brought to the attention of the persons concerned (Art. 26 para. 1 AMLO-FINMA). The purpose of the directives is to train and raise awareness among staff. In terms of content, the directives are a specification of the requirements of the AMLO-FINMA. The directives must be regularly reviewed after their issue and amended as necessary.

17 Article 26 (2) AMLO-FINMA contains a list of regulatory matters that the internal directives should cover. The list is not exhaustive. The following is a brief discussion of the individual areas to be regulated in the internal directives.

2. Increased risks

18 According to Article 6 MLA, financial intermediaries must apply a risk-based approach. This requires them to define at least two client risk categories, which they use to decide what information and audit steps are necessary for an adequate assessment and monitoring of the business relationship. Various letters of Article 26, paragraph 2 of the AMLO-FINMA deal with the increased risks and what must be regulated in directives with regard to these risks: (i) the criteria applied to identify higher-risk business relationships in accordance with Art. 13 MLO-FINMA (lit. a); (ii) the criteria applied to identify higher-risk transactions in accordance with Art. 14 para. 1 and 2 MLO-FINMA (lit. b); and (iii) the modalities according to which the financial intermediary records , limited and monitored (lit. h). Lit. i also explicitly mentions that the amount limits of inflows and outflows must be determined to identify cases of increased risks (Art. 13 para. 2 lit. f and Art. 14 para. 2 lit. a MLO-FINMA).

3. Transaction monitoring

19 According to Article 20 (1) of the FINMA Anti-Money Laundering Ordinance, the financial intermediary shall ensure effective monitoring of business relationships and transactions and shall thus ensure that the increased risks are identified. Pursuant to Article 26 (2) (c) of the FINMA Anti-Money Laundering Ordinance, a directive must be issued that sets out the principles of this transaction monitoring. The relevant criteria from a business policy and/or regulatory perspective must be included.

4. Involvement of the anti-money laundering unit

20 According to Art. 26 (2) (d) AMLO-FINMA, a directive is required stating the cases in which the internal anti-money laundering unit must be involved and the management must be informed.

5. Staff training

21 The principles of employee training must also be set out in a directive (Art. 26 (2) (e) MLO-FINMA). This means that each financial intermediary must define the details regarding the implementation, supervision and content of the training, as well as the documentation and monitoring. The consequences for employees who do not satisfactorily complete the training must also be set out.

6. Politically exposed persons (PEPs)

22 The business policy with regard to politically exposed persons (PEPs) is to be set out in directives (Art. 26 para. 2 let. f AMLO-FINMA). This includes a financial intermediary defining which PEPs can be accepted as clients under which circumstances and subject to which requirements. Special requirements may include, for example, more stringent checks, decisions by executive bodies and further approval processes. The modalities by which a financial intermediary records increased risks also include the handling of PEPs (Art. 26 para. 2 let. h MLO-FINMA).

7. Reporting

23 In accordance with Article 26 (2) (g) of the FINMA Anti-Money Laundering Ordinance, a directive must also be issued to specify who is responsible for reporting to the Money Laundering Reporting Office. In principle, reporting to the Money Laundering Reporting Office is the last step in an extensive clarification process. According to Art. 25a MLO-FINMA, it is the responsibility of the financial intermediary's most senior management body to decide on reporting in accordance with Art. 9 AMLA and Art. 305^bis para. 2 SCC. This responsibility can be delegated to one or more of its members who are not directly responsible for the business relationship in question. It can also be delegated to the anti-money laundering unit or to a largely independent body. The aim of this regulation is to avoid potential conflicts of interest that could arise if members of the executive board also manage client relationships themselves and would thus be involved in the decision-making process regarding whether or not to report. However, the overall responsibility for compliance with the reporting requirement under supervisory law remains with the board of directors or the management (see Art. 24, para. 1, GwV-FINMA), while the delegation merely concerns the implementation of the associated tasks.

8. Involvement of third parties

24 Subject to certain conditions, the financial intermediary may, in accordance with Article 28(1) of the Ordinance on the Prevention of Money Laundering in the Financial Sector (MLO-FINMA), appoint persons and companies to carry out the identification of the contracting party, the establishment of the controlling person or the beneficial owner of the assets, as well as additional clarification duties. It is necessary to conclude a written agreement with the delegated person, except when the delegation occurs within a group or a conglomerate with uniform due diligence standards or to another financial intermediary that is subject to comparable supervision and regulation to combat money laundering and terrorist financing. On-site inspections at the delegate's premises are not required. The delegatee is expressly prohibited from sub-delegating the assigned tasks (see Article 28(3) AMLO-FINMA). The delegating financial intermediary continues to bear full responsibility and liability for any deficiencies, as if they were the delegating financial intermediary's own governing or executive bodies or employees. In addition, the financial intermediary is obliged to obtain a copy of all documents used to fulfil the due diligence requirements. He must obtain written confirmation that the copies provided correspond to the original documents (see Art. 29 (2) MLO-FINMA). The criteria for the involvement of third parties must be set out in a directive in accordance with Art. 26 (2) (j) MLO-FINMA. Cf. also the comments on Art. 3 and 4 regarding delegation.

9. Further allocation of tasks and responsibilities

25 The remaining internal allocation of tasks and responsibilities between the anti-money-laundering unit and the other business units entrusted with the duty to exercise due diligence must also be set out in a directive (Art. 26 para. 2 let. k AMLO-FINMA). This is to enable a clear distinction between the first line of defense and the second line of defense, which has been established in practice and adopted in Art. 26 (2) (k) AMLO-FINMA. Furthermore, a clear allocation of tasks should define the responsibilities.

10. Updating customer records

26 Finally, Art. 26 para. 2 let. l MLO-FINMA requires a directive on the updating of client records. This provision is based on Art. 7 para. 1^bis AMLA. This legal provision was newly inserted into the AMLA with effect from January 1, 2023 (see the commentary on Art. 7). The intervals at which client records must be updated depend on external circumstances (e.g. indications of a change in the contracting party, beneficial owners or controlling persons) and on the specific risks of the client relationship (the files of high-risk clients must be updated more regularly than those of low-risk clients).

E. Integrity and training

27. Integrity and appropriately trained staff are essential in the fight against money laundering and terrorist financing. Art. 27 (1) of the Money Laundering Ordinance-FINMA explicitly states this. This requirement primarily applies to employees of the financial intermediary who have contact with clients, their superiors and all persons who are involved in the financial intermediary activity itself or in the activity of the anti-money laundering unit. The recruitment of personnel who meet the requirements of Article 27 (1) GwV-FINMA is part of proper business management. Checking integrity is a difficult undertaking and usually consists of obtaining extracts from the debt collection and criminal records, as well as a differentiated recruitment procedure (checking CVs, references and other relevant aspects). In the case of prudentially supervised institutions, the examination of integrity is usually ensured by further express guarantee regulations and corresponding audit procedures by FINMA (see, for example, Art. 11 FINIG). The required integrity is to be understood comprehensively. Integrity means acting according to firm moral and ethical principles and remaining true to them, even in difficult situations (e.g. in the event of conflicting objectives within the company). Integrity is not limited to mere compliance with the law, but goes beyond it: ethical behavior, honesty and reliability are also part of integrity. On the one hand, it should ensure that clients cannot use the financial intermediary for money laundering or terrorist financing. On the other hand, it should also guarantee that employees and governing bodies do not themselves commit criminal acts (whether knowingly or not).

28 In addition to the careful selection of personnel, the financial intermediary must also ensure regular training for all employees concerned (Art. 27 para. 2 AMLO-FINMA). The criterion of the training obligation can relate to internal and external persons (in the case of delegation of duties). The training should cover the aspects of combating money laundering and terrorist financing that are relevant for the respective employee. This includes, on the one hand, a basic understanding of the legal and reputation-related risks and, on the other hand, aspects that are specific to the employee's respective function. This is to ensure that all employees involved comply with the processes and that a tight-knit and meaningful anti-money laundering system is implemented. Furthermore, this should create a corporate and compliance culture that results in lawful behavior by all parties involved and does not create false incentives (e.g. no rewarding of behavior that is illegal or borders on illegality).

III. Legal consequences of violating Article 8 AMLA

29 A deficiency in or violation of the requirements of the organizational measures may result in consequences under supervisory and criminal law. For those subject to FINMA, there is a risk of the opening of enforcement proceedings, in the course of which FINMA can apply its supervisory instruments in accordance with Art. 29 et seq. of the FINMASA. According to Art. 25 para. 3 let. c MLA, the self-regulatory organizations must issue regulations that, among other things, define appropriate sanctions. If a financial intermediary under the supervision of a self-regulatory organization violates Art. 8 MLA or the implementing provisions of the regulations of the self-regulatory organization, the competent self-regulatory organization may apply the sanction mechanisms contained in the regulations.

30 Under Article 102 SCC, a company can be fined up to CHF 5 million if it has not taken all necessary and reasonable organizational precautions to prevent crimes such as money laundering under Article 305^bis SCC; the amount of the fine depends on the severity of the organizational deficiency, the damage caused and the economic capacity of the company. The failure to comply with internal company anti-money laundering regulations (and thus a violation of Art. 8 AMLA) can thus be an indication of inadequate organization in accordance with Art. 102 StGB.

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Materials

Botschaft zum Bundesgesetz zur Bekämpfung der Geldwäscherei im Finanzsektor (Gelwäschereigesetz) 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 31.8.2024 (zit. Botschaft GwG 1996).

Erläuterungsbericht zur Totalrevision der Geldwäschereiverordnung-FINMA (GwV-FINMA) vom 11.2.2015, abrufbar unter https://www.finma.ch/de/~/media/finma/dokumente/dokumentencenter/anhoerungen/abgeschlossene-anhoerungen/25-zusammenfuehrung-der-geldwaeschereiverordnungen-der-finma/erlaeuterungsbericht-geldwaeschereiverordnung-finma-20100611-de.pdf?sc_lang=de&hash=0F2352A48C31F45C8213AEBB0C553E25, besucht am 31.8.2024 (zit. Erläuterungsbericht GwV-FINMA 2015).