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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Vorb. zu Art. 1 FADP
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- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
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- Art. 1 CCC (Convention on Cybercrime)
- 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. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 CCC (Convention on Cybercrime)
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- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
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- Art. 8 AMLA
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- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
- I. Introduction and General Provisions
- II. Overview of the Various Scenarios Envisaged by Art. 9 of the Anti-Money Laundering Act (AMLA)
- III. Reporting Obligations of Financial Intermediaries (para. 1)
- IV. Reporting Obligations of Traders (para. 1bis)
- V. Reporting Obligations of Advisors (Art. 9 para. 1ter nAMLA)
- VI. Reporting Procedures
- VII. Effects of the Report and Related Obligations
- VIII. Consequences of a Breach of the Reporting Obligation
- Bibliography
I. Introduction and General Provisions
A. Purpose
1 Article 9 of the Federal Act on Money Laundering (AMLA) addresses theobligation of financial intermediaries and traders to report their suspicions—particularly those related to money laundering—to the Money Laundering Reporting Office (MROS).
2 Although the marginal note to Art. 9 AMLA uses the singular (“Obligation to Report”), the provision actually envisages several distinct scenarios that may trigger the obligation of financial intermediaries or traders to report their suspicions to MROS.
3 In addition to the conditions underlying these various scenarios (Art. 9, para. 1, letters a–c, and para. 1bis of the AMLA BA), the provision in Art. 9 of the Anti-Money Laundering Act (AMLA) includes a legal definition of the concept of “reasonable suspicion” (para. 1quater) and provides certain clarifications regarding the protection of employees’ personal data in the context of reporting (para. 1ter). Finally, Art. 9 of the Anti-Money Laundering Act clarifies the scope of the reporting obligation with respect to attorneys and notaries (para. 2).
B. Purpose
4 The reporting obligation plays a central role in the Swiss anti-money laundering system ' money laundering. This system aims, in conjunction with relevant criminal provisions, to prevent funds of criminal origin from entering the legal monetary system, to identify assets subject to money laundering, and to prosecute those responsible, in order to ensure the integrity of the Swiss financial center. Although it is an instrument governed by administrative law, the reporting obligation is primarily intended to identify funds subject to money laundering and serves as a “link” between the due diligence obligations incumbent upon financial intermediaries, on the one hand, and the prosecution of money laundering by criminal authorities, on the on the other.
5 Thus, the reporting obligation is intended to enable the State to prosecute and punish acts of money laundering (Art. 305bis of the Swiss Criminal Code, SCC) and the financing of terrorism (Art. 260quinquies SCC) and to seize and subsequently confiscate the relevant assets (Art. 70 et seq. SCC). Without the information provided by financial intermediaries and dealers to MROS, many criminal acts and assets subject to confiscation would escape the attention of law enforcement authorities. According to case law, Art. 9 of the Anti-Money Laundering Act (AMLA) also serves, incidentally, to prevent offenses, reduce risks for financial intermediaries, and, finally, preserve the reputation of the Swiss financial center. Thus, the reporting obligation pursues a broader objective than Article 305bis of the Swiss Criminal Code (CP), which criminalizes money laundering.
6 This does not mean, however, that the reporting obligation transforms the financial intermediary or trader into a “police auxiliary,” since it is merely an administrative obligation—albeit one subject to criminal penalties—imposed on actors in a sector presenting a definite risk of money laundering and terrorist financing.
C. International Framework
7 To combat the growing problem of money laundering at the international level, an international intergovernmental organization was established in 1989. This is the Financial Action Task Force on Money Laundering (FATF) whose primary mission is to establish international standards in the fight against money laundering and terrorist financing, as well as to monitor their implementation in the various member countries. Switzerland is a founding member of the FATF.
8 One of the main objectives of Swiss anti-money laundering legislation is to implement these international recommendations in Switzerland. This also applies to the to report provided for in Article 9 of the Anti-Money Laundering Act (AMLA).
9 The first FATF recommendations in 1990 already stipulated that financial institutions suspecting that funds were of criminal origin should be “authorized or required” to promptly report their suspicions to the competent authorities.
10 Today, the 2012 FATF recommendations address the reporting obligation in Recommendation 20, which provides as follows: “Where a financial institution suspects, or has reasonable grounds to suspect, that funds are the proceeds of criminal activity or are related to the financing of terrorism, it should be required by law to immediately file a suspicious transaction report with the financial intelligence unit.” The related interpretive note clarifies that the FATF understands this reporting requirement to be a binding obligation. It also defines the offenses whose suspicion must trigger the reporting obligation.
11 During the FATF’s most recent comprehensive evaluation of Switzerland in 2016, its reporting system was deemed largely compliant with Recommendation 20, although the FATF did not fail to point out that the coexistence of a right and an obligation to report creates legal uncertainty (see in detail infra N. 42 et seq.). The latest follow-up report, dated 2023, contains the same conclusions.
D. Legislative History
12 Since its entry into force on April 1, 1998, Art. 9 of the Anti-Money Laundering Act (AMLA) has been amended several times, with each revision essentially pursuing three objectives: expanding the scope of the reporting obligation, aligning it with international standards—particularly those of the FATF—and codifying Swiss case law. Over time, this has resulted in a dense and complex provision, which, in our view, should be simplified or split into several provisions during a future legislative reform, in order to improve its readability and, to a certain extent, its predictability for financial sector participants.
13 Originally, the reporting obligation was limited to cases where the financial intermediary suspected, based on reasonable grounds, a link between assets and money laundering money laundering, criminal origin, or a criminal organization’s control over such assets (see current para. 1, let. a, subsections 1–3). The professional secrecy of attorneys and notaries was expressly exempted (see para. 2).
14 Successive revisions of the provision in Art. 9 of the Anti-Money Laundering Act (AMLA) have gradually expanded its material and personal scope of application. In 200 9, the reporting obligation was extended to include terrorist financing and the offense of criminal organization, as well as situations where pre-contractual negotiations are terminated due to a well-founded suspicion (see para. 1(a)(4) and (b)). The protection of employees of financial intermediaries was also strengthened by allowing their names to be withheld in the report (see para. 1ter).
15 The 2016 revision marked an important milestone, with the extension of the rule to assets derived from a qualified tax offense and the introduction of a reporting obligation in cases of matches with terrorist lists provided by supervisory authorities (see para. 1, let. a, subpara. 2, and let. c). Furthermore, also as part of the the 2016 amendment, a parallel reporting obligation was established for merchants accepting cash payments (see para. 1bis, letters a–c). Furthermore, the option for anonymization was extended to the merchant’s employees handling the case (see para. 1ter).
16 In 2021, the provision in Art. 9 of the Anti-Money Laundering Act (AMLA) was amended to revised Art. 260ter of the Swiss Criminal Code, so that the reporting obligation now refers to criminal or terrorist organizations (see para. 1, letter a, subparagraph 3, and para. 1bis, letter c). For merchants, the obligation to report cash intended for the financing of terrorism was also added (see para. 1bis, letter d).
17 The most recent revision of Art. 9 of the Anti-Money Laundering Act (LBA), which entered into force in 2023, clarified the provision regarding terrorist lists (see para. 1(c)) and, most importantly, codified the case-law definition of “reasonable suspicion” (see para. 1quater), thereby aligning it with the definition applicable to financial institutions (see Art. 20, para. 1, OBA).
18 The momentum toward implementing international recommendations and expanding the reporting obligation continues, as evidenced by the latest revision of the AMLA adopted on September 26, 2025, concurrently with the Federal Act on the Transparency of Legal Entities (LTPM). This amendment extends Art. 9 of the AMLA to advisors (see Art. 9, para. 1ter of the new AMLA), a status that has also been newly introduced (see Art. 2, paras. 3bis–4ter of the new AMLA). The text of the law adopted by the Federal Chambers is the result of intense parliamentary debates and differs considerably from the Federal Council’s draft. In addition, Parliament also extended the legal definition of “reasonable suspicion” by analogy to dealers and advisors (see Art. 9, para. 1sexies of the new AMLA) and amended the wording regarding the professional secrecy of attorneys and notaries (see Art. 9, para. 2 of the new AMLA) to clarify it. These amendments will take effect on October 1, 2026.
E. Scope of Application
1. Personnel
a. Financial intermediaries, traders, and advisors
19 Art. 9 of the Anti-Money Laundering Act (AMLA) currently applies to financial intermediaries (para. 1) and traders (para. 1bis). These two terms are defined in Art. 2 of the AMLA. Their obligations under Art. 9 AMLA are examined in greater detail below (see infra, Chapters III and IV).
20 In September 2025, the Federal Parliament also decided to extend the reporting obligation to the category of advisors, which will also be defined in Art. 2 of the New Anti-Money Laundering Act (see supra N. 18; infra Chapter V).
b. Attorneys and Notaries
21 It follows from Art. 9(2) of the Anti-Money Laundering Act that the reporting obligation does not apply to attorneys and notaries to the extent that they are subject to professional secrecy under Art. 321 of the Swiss Criminal Code. This exception based on professional secrecy takes into account the concerns expressed during the drafting of the AMLA. It is therefore important to distinguish between activities protected by Art. 321 of the Swiss Criminal Code and those that are not. Only so-called “typical” professional activity is covered by professional secrecy; for attorneys, this includes, in particular, drafting legal documents, assisting or representing a person before an administrative or judicial authority, as well as providing legal or tax advice. For notaries, notarial practice is defined by cantonal legislation. It commonly involves the execution of authentic instruments. By contrast, financial intermediation or trading activities carried out by a lawyer or a notary fall under so-called “atypical” activities , which is not covered by professional secrecy under Art. 321 of the Swiss Criminal Code (CP) and, consequently, is not exempt from the reporting obligation under Art. 9 of the Anti-Money Laundering Act (LBA). However, it is not always easy to distinguish between “typical” activities, which are subject to professional secrecy, and “atypical” activities that fall within the scope of the reporting obligation, particularly in the case of so-called “mixed” mandates, and it should also be noted that the burden of proof regarding the typical nature of the activity rests with the attorney or notary claiming protection under professional secrecy.
22 The targeted nature of the exception concerning the typical activities of attorneys and notaries—that is, the fact that this exception was established solely in the context of the reporting obligation and not more generally in relation to the scope of application of the Anti-Money Laundering Act—has the subject of much scholarly debate. Some authors argue that Art. 9(2) of the Anti-Money Laundering Act (AMLA) is merely declaratory in nature (an “improperly named” exception), since typical activities do not fall within the scope of the AMLA in any case—to such an extent that the other obligations under the AMLA, particularly the due diligence obligations, would not apply in the context of typical activities. We share this view. In our opinion, the legislature did not intend to target the typical activity of a lawyer or notary when enacting the AMLA, even when elements that could constitute financial intermediation are part of that typical activity (for example, collecting a judgment awarded at the conclusion of a civil lawsuit on behalf of a client). The exception in Art. 9(2) of the Anti-Money Laundering Act (AMLA) therefore constitutes, in our view, an impropriately named exception. However, since typical activities may occasionally involve elements characteristic of financial intermediation and the distinction between typical and atypical activities is not always straightforward, we believe it is necessary for the legislature to clarify the scope of application of the AMLA as a whole, without limiting itself to the specific exception in Art. 9(2) of the Anti-Money Laundering Act.
23 However, the revision of the Anti-Money Laundering Act adopted in September 2025 specifically provides for the introduction of such a general exception, which is to be welcomed. Art. 2, para. 4, subpar. f of the new AMLA expressly excludes from the scope of the AMLA “attorneys and notaries who carry out activities in the context of judicial, criminal, administrative, or arbitration proceedings, including representation in proceedings and advice related to the preparation and conduct of proceedings, the clarification of the facts, the assessment of litigation risks, how to prevent such proceedings, or the implementation of the results of the proceedings.” That said, this wording leaves something to be desired. The provision in Art. 2, para. 4, let. f of the new Anti-Money Laundering Act (nLBA) does not expressly refer to the concept of “typical activity” and only partially incorporates its definition; surprisingly, the provision of legal advice is not mentioned. The distinction between legal advice that falls within the scope of “typical activity” and that which does does not fall within it. Furthermore, the wording cited above appears to describe primarily the activities of attorneys, but says little about those of notaries.
24 In addition, the September 2025 amendment also led to a rewording of Art. 9(2) of the Anti-Money Laundering Act (AMLA), such that attorneys and notaries are subject to the reporting obligation only if they carry out a financial transaction in the name of or on behalf of a client (subpar. a) and the information at their disposal is not protected by professional secrecy within the meaning of Art. 321 of the Swiss Criminal Code (subpar. b). From a substantive standpoint, the new Art. 9(2) of the amended Anti-Money Laundering Act (nLBA) should not change anything compared to the current Art. 9(2) of the Anti-Money Laundering Act (LBA). The exception for facts covered by professional secrecy corresponds to current law, and the subjection of attorneys and notaries to the Anti-Money Laundering Act (AMLA) only when they participate in a financial transaction stems from the scope of the law, more specifically from the concept of a financial intermediary. However, this clarification takes on full significance in the context of the inclusion of the new category of advisors under Art. 9 of the Anti-Money Laundering Act (AMLA), as advisory activities may fall under both typical and atypical activities.
c. Audit Firms and Supervisory or Self-Regulatory Bodies
25 Finally, Art. 9 of the Anti-Money Laundering Act (AMLA) does not apply to audit firms of financial institutions, to authorities and supervisory bodies, as well as self-regulatory organizations, for which the AMLA provides separate reporting obligations (see Art. 15(5), Art. 16, and Art. 27( 4 AMLA).
2. Material Scope
26 The material scope of Art. 9 AMLA cannot be determined in general terms but varies depending on the scenario covered by the provision. It may apply to assets involved in a business relationship (para. 1(a)), or intended to be involved in a future business relationship ( para. 1(b)), to data concerning a contracting party, a beneficial owner, or an authorized signatory of a business relationship or transaction (para. 1(c)), or to cash used in a trading transaction (para. 1bis). Since these concepts cannot be separated from the substantive conditions of the reporting obligation, we will discuss them in more detail below in connection with those conditions (see infra, Chapters III and IV).
3. Territorial
27 Like the AMLA itself, Art. 9 AMLA does not explicitly define its territorial scope of application. Thus, the reporting obligation, as a rule of administrative law, is subject to the principle of territoriality, according to which Swiss public law generally applies only to facts and situations that occur in Switzerland.
28 According to a relatively old—but since confirmed—Federal Supreme Court ruling, the decisive connecting factor is not the place of domicile or registered office of the person subject to the AMLA, nor that of their business partner’s domicile, nor even the location of the assets in question, but rather the place where the activity covered by the AMLA is carried out. In the case of cross-border financial services, this place must be determined on a case-by-case basis, depending on the specific circumstances. To this end, it is necessary to examine, in light of the purpose of the AMLA—namely, the prevention of circumvention of prudential supervision and the protection of the integrity of the Swiss financial center, whether the activity in question has a sufficiently close connection to Switzerland to justify its subjection to the AMLA. This is generally the case when the activity is carried out primarily in Switzerland, even if certain operational or back-office activities take place abroad.
29 These principles are explicitly set forth in the ordinances implementing the Anti-Money Laundering Act (AMLA). Indeed, the Anti-Money Laundering Ordinance (AMLO) specifies in Art. 2(1) that it applies to financial intermediaries and dealers “who conduct their business in Switzerland or from Switzerland,” a concept that must be interpreted in light of the aforementioned case law. Similarly, pursuant to Art. 5(1) of the FINMA Money Laundering Ordinance (OBA -FINMA), financial intermediaries must ensure that their branches abroad, as well as foreign group companies, comply with certain principles of the Anti-Money Laundering Act (AMLA), while Art. 5, para. 4, AMLO-FINMA expressly provides that the reporting of suspicious transactions or business relationships is governed by the provisions of the host country.
4. Temporal
a. Commencement of the Obligation
30 As a reminder, the reporting obligation under Art. 9 of the Anti-Money Laundering Act (AMLA) took effect on April 1, 1998, at the same time as the AMLA (see supra N. 13).
31 The reporting obligation is triggered as soon as the statutory threshold for suspicion is met (see infra N. 99). Case law interpreting Art. 9(1)(a) AMLA holds that, in particular, it is not necessary for the financial intermediary to already have control over the assets, as its suspicions may also relate to specific or identifiable assets intended to come under its sphere of influence. Furthermore, the reporting obligation already applies when the financial intermediary, based on well-founded suspicions, terminates negotiations aimed at establishing a business relationship (Art. 9(1)(b) AMLA; see infra N. 131). Such an early reporting requirement is justified because, otherwise, a financial intermediary harboring well-founded suspicions could simply refuse to enter into a and thus evade the reporting obligation, to the extent that the illicit assets could be placed with another financial intermediary, whether Swiss or foreign.
b. Termination of the Obligation
32 The question of when the reporting obligation ends is closely linked to the purpose of Art. 9 AMLA. This issue was long controversial. The Federal Supreme Court ultimately held, in a landmark ruling, that the reporting obligation lasts as long as the illicit assets can be traced and confiscated.
33 Consequently, the reporting obligation does not end with the internal freezing of funds or the termination of the business relationship, because—according to the Federal Supreme Court—“Art. 9 AMLA must allow the prosecution of money laundering, and it would be shocking if the financial intermediary, who has a well-founded suspicion, could be released from all obligations by terminating the business relationship”. Nor does the obligation automatically cease merely because a third party reports the facts to the criminal authorities or because the criminal authorities initiate proceedings in connection with the disputed assets . The reporting obligation remains in effect as long as the criminal authorities are unaware of the fate of the assets in question—that is, as long as these assets may still elude them. According to the Federal Supreme Court, this approach is justified because the reporting obligation is ultimately intended to facilitate the discovery and forfeiture of the assets in question. However, it would be disproportionate and unjustified in light of the objective of the Anti-Money Laundering Act (AMLA) to set the end of the obligation at the time of the (actual) seizure of said assets. The relevant point in time is when the criminal prosecution authority has all the relevant information necessary for the discovery and seizure of the disputed assets, regardless of whether they have actually been seized. A fortiori , when the assets are seized from the relevant financial intermediary, any reporting obligation on the part of the financial intermediary ceases. To assess whether the criminal authorities have sufficient information regarding the assets in question and are therefore in a position to order their seizure, recent case law relies on Art. 3 OBCBA, which governs the required content of reports submitted to MROS.
34 Given that case law makes the termination of the reporting obligation on the status of the information available to the criminal authorities—and since persons subject to the reporting obligation are often unaware of this status— it is advisable, in practice, to refrain from reporting to MROS only with the utmost caution. This is all the more true given that the report must be made immediately upon the emergence of reasonable suspicion.
35 The reporting obligation also ends, for the financial intermediary and the dealer concerned, on the day they submit the required report, including all necessary information pursuant to Art. 3 OBCBA, namely, in particular, data identifying other persons authorized to sign for or represent the customer, the current status of the account in question, a description of the business relationship—including the account numbers and dates of account opening—as well as the information at their disposal supporting the suspicions underlying the report. Even a report that is presumably incomplete may satisfy the reporting obligation provided that, as a result of such a report, law enforcement authorities have all the information necessary to enable them to seize the in question.
36 It should be noted that, furthermore, it is not necessary for the information enabling the identification and seizure of the assets to come from the person subject to Art. 9 of the Anti-Money Laundering Act; the reporting obligation ends even if the relevant information is transmitted to the criminal justice authority by a third party, if necessary without the financial intermediary’s knowledge.
37 One may also ask whether the reporting obligation ceases when the financial intermediary or dealer has no additional information beyond what is already in the possession of the criminal authorities, if that information is insufficient to identify and seize the assets in question. A teleological interpretation supports this view, but finds no basis in the plain language of the provision, so that a report must, a priori, also be made in such a case, if only as a precaution.
38 The aforementioned case law, according to which the reporting obligation lasts as long as the assets can still be traced and confiscated, could mean that an obligation to report may arise, for the first time, after the end of the business relationship—for example, when newspaper clippings or other information that has come to the financial intermediary’s attention gives rise to well-founded suspicions a posteriori. Such a report could prove useful from the perspective of criminal prosecution for money laundering and confiscation (see supra N. 5), subject, however, to the passage of time and the fact that the financial intermediary is often unaware of the fate and location of the assets in question. It is important to note, however, that there is no general obligation on financial intermediaries to actively monitor closed business relationships. Furthermore, no specific clarifications may be required in the event that reasonable suspicion arises after the termination of a business relationship; consequently, reporting in such a situation must be based on the documents in the financial intermediary’s possession, for which the statutory retention period is 10 years (Art. 7(3) AMLA).
F. Links to Other Provisions
1. The AMLA
39 Art. 9 AMLA is not the only provision of the AMLA that imposes an obligation to report to MROS. Such an obligation also applies to other participants in the financial system: as already mentioned above (see supra N. 25), Art. 15(5) of the AMLA applies to the auditors of dealers, Art. 16 AMLA to supervisory authorities and bodies, and Art. 27(4) AMLA to self-regulatory organizations.
40 The reporting obligation under Art. 9 AMLA is also closely linked to other provisions of the AMLA. For example, the purpose of the inquiries under Art. 6(2) AMLA is precisely to enable the financial intermediary to determine whether or not a report must be filed and to provide the necessary information for such a report (see infra N. 101 et seq.). Furthermore, Art. 9a et seq. AMLA govern the obligations of financial intermediaries following a report (see infra N. 199 et seq.), and Art. 11 AMLA excludes civil and/or criminal liability in connection with reports made in good faith ( see below N. 209). Art. 23 of the Anti-Money Laundering Act (AMLA), supplemented by the AMLA Implementation Ordinance, defines the role and obligations of MROS (see below N. 178 et seq. and N. 195 et seq.). Finally, Art. 37 AMLA penalizes violations of Art. 9 AMLA (see below N. 212).
2. Ordinances on Money Laundering
41 The Article 9 of the AMLA is supplemented by various provisions of the ordinances implementing the AMLA. Thus, Articles 12a et seq. of the Anti-Money Laundering Ordinance (OBA) set forth the obligations that financial intermediaries must comply with in cases of suspected money laundering (see below, N. 199 et seq.). Art. 20 AMLO specifies the reporting obligation of traders under Art. 9(1)bis AMLA (see below, Chapter IV). Art. 22a FINMA-AMLO requires financial intermediaries to notify FINMA or the supervisory authority of reports concerning significant assets and to document any decision not to report (see below N. 205). Art. 25a OBA -FINMA governs, within certain financial intermediaries, the decision-making authority regarding reports to MROS, and Art. 26(2)(g) OBA-FINMA requires that internal guidelines specify the decision-making authority for reports (see below N. 170 et seq.). Art. 74(1)(f) OBA-FINMA requires financial intermediaries to retain a copy of the reports submitted (see below N. 170 et seq.). Other relevant provisions can also be found in the CFMJ Anti-Money Laundering Ordinance (OBA-CFMJ) concerning casinos, in the FDJP Anti-Money Laundering Ordinance (OBA-DFJP) concerning large-scale gaming operators, and in the OFDF Anti-Money Laundering Ordinance (OBA-OFDF) concerning the trading of bank-grade precious metals.
3. Right to Disclose under Art. 305ter, para. 2, of the Swiss Criminal Code
42 The reporting obligation has a complex relationship with the right to report within the meaning of Art. 305ter, para. 2, of the Swiss Criminal Code (CP). The issue has become even more pronounced with the lowering of the threshold for “reasonable suspicion” established by case law—now codified in Art. 9, para. 1quater, of the Anti-Money Laundering Act (AMLA)—and the concomitant expansion of the scope of application of Art. 9 of the Anti-Money Laundering Act (AMLA), coinciding with a narrowing of the scope of Art. 305ter, para. 2 of the Swiss Criminal Code (SCC).
43 According to Art. 305ter, para. 2 of the SCC, persons who accept, hold in custody, or assist in placing or transferring assets belonging to a third party in the course of their professional activities have the right to report to MROS any indications giving rise to a suspicion that assets originate from a crime or a qualified tax offense.
44 Let us first note the clear differences between the two regimes. First, with regard to their effect: Article 9 of the Anti-Money Laundering Act (AMLA) establishes a genuine reporting obligation, the failure to comply with which entails administrative and criminal consequences (see infra Chapter VIII), whereas Article 305ter, para. 2, of the Swiss Criminal Code (CP) serves as a justifying ground within the meaning of Art. 14 CP, allowing the financial intermediary to report its suspicions on a voluntary basis, without violating, in particular, banking secrecy (Art. 47 of the Banking Act, BA). As for their personal scope of application, the activities listed in Art. 305ter, para. 1 of the Swiss Criminal Code, to which Art. 305ter, para. 2 of the Swiss Criminal Code refers, are those of financial intermediaries in the broad sense pursuant to Art. 2, paras. 2 and 3 of the Anti-Money Laundering Act. It follows that the right to report applies only to financial intermediaries, but not, for example, to traders. With regard to the grounds for reporting, Art. 305ter, para. 2 of the Swiss Criminal Code (CP) mentions only the suspicion that the assets derive from a crime or a qualified tax offense—that is, the scenario covered by Art. 9, para. 1, let. a, ch. 2 of the Anti-Money Laundering Act (AMLA)—whereas Art. 9 of the AMLA has a broader scope. Furthermore, the right to report is not expressly limited to assets involved in the business relationship or intended to be involved in a business relationship currently under negotiation and therefore has a potentially broader scope. Finally, the right to disclose provided for in Art. 305ter, para. 2, of the Swiss Criminal Code (CP) may be exercised at any time, which means that it does not, in particular, cease once the criminal authorities have obtained the information necessary to identify and seize the assets in question.
45 The question of the distinction between Art. 305ter, para. 2, of the CP and Article 9 of the Anti-Money Laundering Act (AMLA) therefore ultimately arises only when a financial intermediary is involved and when assets—whether already involved in or intended to be involved in the business relationship—are suspected of deriving from a crime or a qualified tax offense. The distinction between these two provisions revolves primarily around the required threshold of suspicion, namely a mere suspicion in the case of Art. 305ter, para. 2, of the Swiss Criminal Code (CP), and reasonable suspicion in the case of Art. 9 of the Anti-Money Laundering Act (AMLA). The relationship between these two provisions must be examined in light of the genesis and evolution of these two concepts.
46 The right to report under Art. 305ter, para. 2, of the Swiss Criminal Code (CP) was introduced on August 1, 1994—some four years before the Anti-Money Laundering Act (LBA) came into force—in order to free financial intermediaries from the dilemma of, on the one hand, violating their confidentiality obligations if they were to disclose their suspicions to the authorities, and, on the other hand, incurring criminal liability for money laundering if they refrained from reporting and allowed the transfer of potentially illicit assets. At the time, the Federal Council considered it essential to establish a right to report, independent of the subsequent introduction of a reporting obligation, “in particular because a financial professional may become aware of information whose suspicious nature may reach a level that, while justifying the dilemma […]does not yet establish a reporting obligation.”
47 While, until 1996, the FATF recommendations provided that financial institutions “should be authorized or required” to report their suspicions, they were amended that year to the effect that a reporting obligation must necessarily be established by member states. Switzerland has often been criticized for failing to fully implement the FATF recommendations.
48 When Art. 9 of the Anti-Money Laundering Act (AMLA) was adopted in 1997, the Federal Council emphasized that the right to report and the obligation to report “must be understood as different degrees of the same concept. […] The various degrees of suspicion on the part of the financial intermediary range from a hunch based on vague indications to absolute certainty. They encompass the situation in which, due to the absence of clearly established facts, a report to the competent authorities is justified but not yet inevitable, as well as the situation where the intermediary is obligated to report its suspicions because they prove to be well-founded. From this perspective, the two concepts do not are not contradictory but complementary.” This was the rationale for retaining Art. 305ter, para. 2, of the Swiss Criminal Code (CP) following the introduction of Art. 9 of the Anti-Money Laundering Act (LBA).
49 In the years that followed, MROS gradually came out in favor of lowering the applicable thresholds. In its 2007 annual report, for example, it emphasized that the “the legislature did not intend to establish a reporting obligation solely for cases where the financial intermediary has concrete knowledge” and that suspicion is sufficiently well-founded, within the meaning of Art. 9 of the Anti-Money Laundering Act (AMLA), if “the financial intermediary presumes or at least cannot rule out that the assets are of criminal origin.” Furthermore, MROS has regularly reiterated that a financial intermediary may exercise its right to report “based on a probability, a doubt, or even a sense of unease regarding the continuation of the business relationship.”
50 In 2008, in a civil case involving a financial intermediary who had filed a report allegedly harmful to its client, the Federal Supreme Court ruled that a “mere doubt” remaining at the end of the clarification process was sufficient to trigger the reporting obligation, such that the financial intermediary was not held civilly liable. This case law, a priori favorable to financial intermediaries from the perspective of their potential civil liability, subsequently backfired on them when it was adopted, as early as 201 5, by the Federal Criminal Court and subsequently also by the Federal Supreme Court in the context of criminal proceedings concerning violations of the reporting obligation (Art. 37 AMLA).
51 The Federal Council first considered repealing the right to report in 2014, as part of the preliminary draft on the implementation of the FATF recommendations. In support of this proposal, it emphasized that the coexistence of the right and the obligation to report could be confusing and prove ineffective. Faced with reservations expressed during the consultation process, the Federal Council ultimately abandoned this repeal. In 2016, however, the FATF criticized Switzerland for the fact that the coexistence of an obligation and a right to report “hampers financial intermediaries’ understanding and interpretation of the circumstances giving rise to an obligation to report a suspicion to MROS,” such that “[t]he legislative framework should be clarified to specify the distinction between the right and the obligation to report and to prevent the same level of suspicion from falling under both regimes.” On this basis, the Federal Council once again considered repealing the right to report, this time as part of the preliminary draft revision of the Anti-Money Laundering Act (AMLA) of 2018. Citing the FATF’s opinion and the aforementioned case law—which lowered the threshold for reasonable suspicion—the Federal Council concluded that there was no longer any place for Art. 305ter, para. 2, of the Swiss Criminal Code. The majority of consultation respondents, however, objected that the right to report constitutes an effective tool in the fight against money laundering, allowing for the elimination of any risk of criminal liability. It was also emphasized that one should not attach so much importance to the 2008 Federal Supreme Court ruling, which addressed incidentally on the scope of the reporting obligation. The Federal Council thus once again refrained from repealing Art. 305ter, para. 2 of the Swiss Criminal Code in its draft bill, while offering interesting insights into the relationship between the right to disclose and the reporting obligation in its explanatory memorandum.
52 In particular, the Federal Council explained that the right to report is a subsidiary instrument relative to the reporting obligation and that “before exercising the right to report, the financial intermediary must always examine whether the reporting obligation applies” and that “therefore, even when exercising the right to report, preliminary clarifications within the meaning of Art. 6(2) of the Anti-Money Laundering Act (AMLA). In other words, the right to report cannot be used to report cases to MROS without conducting any preliminary clarifications.”
53 In 2021, in a landmark ruling, the Federal Supreme Court finally clarified its case law on the concept of “reasonable suspicion” in the following terms: “[i]t must be understood from this case law that if, following a concrete examination of the business relationship, the suspicion cannot be dispelled during the investigations conducted pursuant to Art. 6(2) of the Anti-Money Laundering Act (AMLA) […], it is therefore not unfounded and must be reported to MROS” (see infra N. 101).
54 A few months later, still in 2021, Parliament decided to codify this case law and establish it as a legal definition. Effective January 1, 2023, Art. 9(1)quater of the Anti-Money Laundering Act (AMLA) now provides that “there are reasonable grounds for suspicion when the financial intermediary has a concrete indication or several clues suggesting that the criteria defined in para. 1, subpara. a, could be met with respect to the assets involved in the business relationship, and that the additional clarifications carried out pursuant to Art. 6 do not dispel the suspicions” (see infra N. 101).
55 Given the evolution of case law and legislative developments, it is clear that the right to report has been significantly eroded over time. Indeed, on the one hand, it follows from the statutory definition in Art. 9(1quater) of the Anti-Money Laundering Act (AMLA) and from case law that well-founded suspicions—triggering the reporting obligation—exist as long as a suspicion, or even a mere doubt, remains that has not been dispelled by the clarifications. On the other hand, the Federal Council has emphasized that Art. 305ter (2) of the Swiss Criminal Code (CP) cannot be used to make “defensive” reports without first undertaking the necessary clarifications. In other words, if the financial intermediary conducts clarifications, one of two things will occur: either a doubt remains at the end of this process, in which case the financial intermediary is required to file a report under Art. 9 of the Anti-Money Laundering Act (LBA), or the doubts have been fully dispelled, and there is no longer any basis for a report, even under Art. 305ter, para. 2, of the Swiss Criminal Code (CP). The fact that the right to report has thus lost its relevance is not in itself cause for concern, since the original objective of Art. 305ter, para. 2, of the CP—namely, to free the financial intermediary from the dilemma of either violating its obligations of secrecy or confidentiality or risking liability for money laundering—is addressed addressed by Art. 14 of the Swiss Criminal Code (CP) and, since 2009, explicitly by Art. 11 of the Anti-Money Laundering Act (LBA). Furthermore, and more generally, it should be emphasized that the right and the obligation to report have the same legal effects under the current system (see Art. 9a et seq. AMLA), so that, from the perspective of legal consequences, it does not appear essential to maintain the right to disclose. Furthermore, there is no historical justification for retaining it either: due to the criticism raised during the most recent consultation procedures, the Federal Council had indeed (reluctantly) refrained from proposing the repeal of Art. 305ter, para. 2, of the Swiss Criminal Code (CP) to Parliament. That said, Parliament approved the codification of the concept of “reasonable suspicion” in Art. 9, para. 1quater, of the Anti-Money Laundering Act (LBA), thereby confirming that Art. 305ter, para. 2, of the Swiss Criminal Code now plays a role reduced to the bare minimum.
56 The only two possible alternative interpretations of Article 305ter, paragraph 2, of the Swiss Criminal Code that lead to a different result are not convincing. First, recognizing the right to report based merely on a vague sense of unease—as proposed by MROS—would expand this right almost without limit, which would be contrary to the letter and purpose of the provision and risks further overburdening MROS with reports of highly relative relevance and utility. Furthermore, it would then be necessary to distinguish between a sense of unease and (mere) unresolved doubt, which seems just as difficult. Second, it would be of little more use to depart from the Message—which states that clarifications must also be sought before exercising the right to report—because while the financial intermediary could certainly make an initial report based on the right to report, it would still be required to seek clarifications in accordance with Art. 6(2) of the Anti-Money Laundering Act (AMLA). However, such clarifications would either render the initial report moot or lead to a new, more precise report that would be more useful for the fulfillment of MROS’s tasks. Finally, these two alternative approaches seem difficult to reconcile with the substantive requirements set forth in Art. 3(1) cum Art. 2(a) of the OBCBA.
57 In light of the foregoing, Art. 305ter(2) of the Swiss Criminal Code (CP) has lost most of its rationale, and its repeal would alter the legal situation for financial intermediaries only marginally, if at all. It would likely also contribute to legal certainty. Its retention, in our view, can be explained solely by its historical significance and the caution of the Federal Council, which likely did not wish to jeopardize the aforementioned reforms of the Anti-Money Laundering Act (AMLA) aimed at clarifying the legal framework and preferred to address this in its respective messages.
58 These various considerations imply that, in practice, the distinction between the right and the obligation to report is not always straightforward. This ambiguity is particularly problematic given that Art. 37 of the Anti-Money Laundering Act (AMLA) imposes a criminal penalty for violating the reporting obligation under Art. 9 AMLA. In particular, one may wonder whether a person who makes a report based on the right to report, even though the conditions for the reporting obligation have been met, is in violation of their reporting obligation. In our view, a financial intermediary who makes a report based on Art. 30 5ter, para. 2, of the Swiss Criminal Code (CP) does not violate its reporting obligation within the meaning of Art. 37 of the Anti-Money Laundering Act (AMLA), insofar as both types of reporting a priori contain virtually identical information with respect to the objective set forth in Art. 9 of the AMLA (see Art. 3, para. 1, in conjunction with Art. 2(a) of the AMLA Reporting Regulations). Furthermore, there is the more delicate question of whether a financial intermediary who mistakenly believes they are only entitled to report and therefore refrains from doing so, even though when in reality they are obligated to do so, is in violation of their reporting obligation under Art. 37 of the Anti-Money Laundering Act (AMLA). This question undoubtedly calls for an affirmative answer, provided that the financial intermediary can be held liable for intent or negligence, bearing in mind that an error in legal classification is not an error of fact within the meaning of Art. 13 of the Swiss Penal Code (CP) nor an error regarding unlawfulness within the meaning of Art. 21 CP.
4. Reporting obligation under Art. 7 of the Act on the Freezing and Return of Assets of Illicit Origin Belonging to Politically Exposed Persons Abroad (LVP)
59 The Federal Act on the Freezing and Return of Assets of Illicit Origin Belonging to Politically Exposed Persons Abroad (LVP) entered into force on July 1, 2016. Its purpose is, as its title suggests, to ensure the return to foreign states, as quickly and transparently as possible, of assets of criminal origin deposited in Switzerland. In Art. 7, para. 1, the LVP also establishes a reporting obligation: individuals and institutions that hold or manage in Switzerland assets belonging to persons subject to a freezing measure within the meaning of Article 3 of the Act must report them without delay to MROS. This also applies to individuals and institutions that, without holding or managing such assets in Switzerland, become aware of them in the course of their duties (Art. 7(2) LVP).
60 For the sake of efficiency, it was decided that reports under Art. 7 LVP should be made not to the Federal Department of Foreign Affairs, but to MROS, which thus acts as a “one-stop shop.”
61 Unlike the reporting obligation under Art. 9 of the Anti-Money Laundering Act (AMLA), the obligation under Article 7 of the LVP is based solely on a comparison with a list and does not require any further clarification. Another difference between the two regimes lies in the fact that the personal scope of application of the LVP is broader than that of the AMLA.
62 The coexistence of the reporting obligations under Article 7 of the LVP and Article 9 of the AMLA stems from the very different objectives pursued by these two laws. It follows that a report under the LVP has no effect on the obligations under the LBA, and vice versa. A report pursuant to the LVP therefore does not necessarily mean that there are reasonable grounds for suspicion within the meaning of Art. 9 LBA, nor that a report to that effect must a fortiori be filed with MROS. On the other hand, a match with the list of persons subject to a preventive freezing measure under the LVP triggers clarification obligations for financial intermediaries subject to the AMLA pursuant to Art. 6 AMLA.
5. Money Laundering (Art. 305bis of the Swiss Criminal Code)
63 The reporting obligation under Art. 9 of the Anti-Money Laundering Act (AMLA) and the offense of money laundering under Art. 305bis of the Swiss Criminal Code are closely linked, if only - because the reporting obligation serves as a pivotal link between the obligations under the AMLA and criminal prosecution, particularly that of money laundering (see supra N. 4).
64 In a landmark decision, the Federal Supreme Court relied in particular on the reporting obligation to conclude that the financial intermediaries held a position of guarantor within the meaning of Art. 11 of the Swiss Criminal Code. Indeed, our High Court ruled that “since the AMLA came into force, financial intermediaries have been in a special legal situation that obliges them, in particular, to clarify the economic background and purpose of a business relationship when there are indications that assets may be derived from a crime, and to immediately notify the [MROS] if they know or suspect, based on reasonable grounds, that the assets involved in the business relationship are related to an act of money laundering or are derived from a crime.” Consequently, and given the current state of Federal Supreme Court case law, persons subject to the Anti-Money Laundering Act (AMLA) may be punished for money laundering by omission, particularly if it is established, from the perspective of hypothetical causation, that performing the act that was wrongfully omitted (typically, reporting to MROS) would have prevented the occurrence of the result that actually occurred. It should be noted, however, that when a financial intermediary or dealer subject to the AMLA is organized as a business (see below N. 167 et seq.), the group of potential perpetrators of money laundering by omission is strictly defined byArt. 29 of the Swiss Criminal Code (CP), which covers officers, partners, employees with independent decision-making authority, and de facto managers—thus specifically excluding, in particular, subordinate employees.
65 Furthermore, in practice, there is a certain tendency to view failure to comply with the reporting obligation under Art. 9 of the Anti-Money Laundering Act (AMLA) as evidence of intent with respect to money laundering . Such a simplistic conclusion must be rejected. Indeed, even if it is theoretically conceivable, in certain specific cases, that the failure to report to MROS might indicate the perpetrator’s intent to obstruct the forfeiture of assets of illicit origin, any automatic conclusion or presumption in this regard would not only be dangerous but also contrary to the ratio legis of Art. 9 of the Anti-Money Laundering Act (AMLA). Indeed, a person who violates their administrative obligations—even intentionally, where applicable—does not ipso facto intend to obstruct the confiscation of assets. Recent case law from the Federal Supreme Court also supports this view. Indeed, according to a significant ruling handed down in September 2025, the fact that a financial intermediary has violated its due diligence obligations under the Anti-Money Laundering Act (AMLA) does not in itself allow for the conclusion that existence of (possible) intent to launder within the meaning of Art. 305bis of the Swiss Criminal Code. Furthermore, it should also be noted that, in the context of Art. 37 of the Anti-Money Laundering Act (AMLA), the perpetrator’s intent need not relate to the criminal origin of the assets, but (solely) to the existence of a reportable fact. This additional element confirms that any conflation of the reporting obligation and the criminal offense of money laundering would be legally erroneous.
6. The nemo tenetur principle (Art. 14(3)(g) of the Second UN Covenant, Art. 6(1) of the ECHR, and Art. 32 of the Swiss Constitution)
66 Reporting under Art. 9 of the Anti-Money Laundering Act (AMLA) is an active form of cooperation with the criminal justice system, to which the financial intermediary or dealer is bound by Art. 37 of the AMLA. Thus, one may ask whether a financial intermediary or dealer who risks incriminating themselves—particularly in light of Art. 37 of the Anti-Money Laundering Act (AMLA), or even Art. 305bis or 305ter of the Swiss Criminal Code (SCC)—in the context of a report to MROS—can invoke the principle of nemo tenetur to refrain from making the report. Indeed, according to this principle—which is enshrined in Art. 14(3)(g) of the Second UN Covenant and derived by case law from Art. 6(1) of the ECHR and Art. 32 of the Swiss Constitution— the defendant in criminal proceedings is not required to testify, nor, a fortiori, to actively contribute to his or her own incrimination. Furthermore, the exercise of this right may not prejudice the defendant nor constitute evidence or an indication of guilt.
67 To date, case law has not clearly answered the question of whether invoking the nemo tenetur principle exempts the person concerned from the obligation to provide information. Legal scholarship is also divided on this issue, although the majority of scholars seem to favor this possibility.
68 In our view, it is not possible to agree with those who regard the nemo tenetur principle as a justification for failing to make a report in accordance with Art. 9 of the Anti-Money Laundering Act (LBA). The key point is that the nemo tenetur principle applies only in criminal proceedings. Indeed, according to settled case law, the nemo tenetur principle grants—in the context of a criminal trial—the right not to actively contribute to one’s own incrimination, which implies that criminal authorities—and they alone—may not rely on evidence obtained through pressure or coercion, against the will of the accused. It follows that the nemo tenetur principle cannot preclude the disclosure obligation, which falls solely under administrative law; however, it may, where applicable, nevertheless result in evidence gathered on this basis being inadmissible in any criminal proceedings against the person who made the disclosure.
II. Overview of the Various Scenarios Envisaged by Art. 9 of the Anti-Money Laundering Act (AMLA)
69 Art. 9 of the Anti-Money Laundering Act (AMLA) currently covers four scenarios in which it establishes a reporting obligation. Furthermore, in September 2025, the legislature decided to extend the reporting obligation to advisors as part of the revision of the AMLA, which will take effect on October 1, 2026 (see supra N. 18). Thus, the scenarios covered by Art. 9 of the Anti-Money Laundering Act (AMLA) can be summarized schematically as follows:
70 The various scenarios are presented below, grouped according to the parties to whom they apply, namely financial intermediaries (see infra Chapter III), dealers (see infra Chapter IV), and advisors (see infra Chapter V). Where the requirements are identical, reference will be made to the relevant discussions already presented.
III. Reporting Obligations of Financial Intermediaries (para. 1)
A. Addressees: Financial Intermediaries
71 The reporting obligation set forth in Art. 9, para. 1, AMLA applies to financial intermediaries within the meaning of Art. 2, para. 1, AMLA, a term that encompasses both financial intermediaries subject to prudential supervision (Art. 2, para. 2, AMLA) and those that are not ( Art. 2, para. 3, AMLA). Furthermore, the personal scope of application of Art. 9 AMLA has been discussed above (see supra N. 19 et seq.).
B. Conditions
72 Financial intermediaries are subject to a reporting obligation in three distinct scenarios. The “classic” scenario—and the most common in practice—involves a situation where the financial intermediary knows or has reasonable grounds to suspect that the assets involved in a business relationship are linked to certain crimes or offenses (Art. 9, para. 1, subpar. a, AMLA). The second scenario extends the reporting obligation under subparagraph (a) to the period prior to the establishment of any business relationship, in the event of a breakdown in negotiations aimed at establishing such a relationship (Art. 9(1)(b) AMLA). Finally, the third scenario falls within the framework of combating the financing of terrorism and supplements Art. 9(1)(a) AMLA (Art. 9(1)(c) AMLA). This scenario differs from the others in that it focuses on the identity of the persons involved in the business relationship business relationship rather than on the assets involved in the business relationship or intended to be involved.
1. Reporting Obligation in the Event of Suspicions Regarding Assets Involved in the Business (para. 1(a))
73 The reporting obligation under Art. 9(1)(a) AMLA is triggered as soon as the financial intermediary knows or suspects, based on reasonable grounds, that the assets involved in the business relationship are linked to certain crimes or offenses.
a. Subject of the suspicion: Assets involved in the business relationship
74 The reporting obligation under Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) exists only where there are assets involved in a business relationship. The assets therefore constitute the subject of the suspicion.
75 In the context of combating money laundering, the term asset refers to any element of one’s estate or, in other words, any asset with economic value. According to case law, it must be interpreted broadly and encompasses, in particular, book money, i.e., account balances held with financial institutions. The concept of “asset” under Art. 9 of the Anti-Money Laundering Act corresponds to that in Arts. 70 and 305bis of the Swiss Criminal Code and not to the narrower meaning used in offenses against property (Arts. 137 et seq. of the Swiss Criminal Code). By contrast, the isolated view—according to which a suspicion concerning the persons involved or their actions also triggers the reporting obligation—appears to us to be contrary to the unambiguous wording of the provision and its purpose. It must be clearly rejected. That said, such a suspicion may necessitate further clarifications within the meaning of Art. 6(2) of the Anti-Money Laundering Act (AMLA), which must also address the assets involved in the business relationship and linked to the person concerned.
76 A business business relationship within the meaning of Art. 9 of the Anti-Money Laundering Act (AMLA) exists not only in the case of a long-term contractual relationship but also in the case of a one-time relationship, such as a single transaction or a cash transaction. In distinction to Art. 9(1)(b) of the AMLA, the decisive factor is above all that there is a business relationship, however simple it may be, and not merely negotiations aimed at establishing such a relationship; the relevant criterion is whether there is agreement on the essential elements of the business relationship (see infra, N. 120 et seq.).
77 Assets over which the financial intermediary has power of disposal are deemed to be involved in the business relationship the business relationship. Also included, in light of the purpose of Art. 9 of the Anti-Money Laundering Act (AMLA), are assets over which the financial intermediary has had power of disposal in the past and which have since left its sphere of influence. The question arises, however, as to whether assets that have merely been reported can be considered to be already included in the relationship under Art. 9(1)(a) AMLA. The Appeals Chamber of the Federal Criminal Court favors this view, while scholarly opinion is divided. The inclusion of these assets—which, from a teleological perspective, may understandably appear desirable—seems to us, however, difficult to reconcile with a literal interpretation of the provision and would would extend an obligation that is already very broad. In any event, the principle of legality (Art. 1 of the Swiss Criminal Code) precludes, in our view, criminal prosecution (Art. 37 of the Anti-Money Laundering Act) of a financial intermediary who delayed or failed to report assets that had merely been declared, without ever having had the power to dispose of them .
78 In a recent order dismissing the case—which was subsequently overturned on appeal—the Criminal Division of the Federal Criminal Court held that only confiscatable assets fall under Art. 9 of the Anti-Money Laundering Act (AMLA), drawing a parallel with the applicable case law on money laundering under Art. 305bis of the Swiss Criminal Code (SCC). In our view , it is not possible to simply transpose the case law established under Art. 305bis of the Swiss Criminal Code to Art. 9 of the Anti-Money Laundering Act (AMLA), because the latter provision pursues a broader objective than the suppression of money laundering. The purpose of Art. 9 AMLA thus requires that suspicions be reported in order to facilitate the prosecution of potential offenses and, ultimately, the confiscation of illicit assets (see supra N. 5). Furthermore, it is not the responsibility of the financial intermediary to determine whether the assets in question are subject to forfeiture; case law frequently reiterates that it is not the role of the financial intermediary to resolve complex legal issues, such such as, for example, the statute of limitations for criminal prosecution or the existence of a valid criminal complaint.
b. Nature of the Suspicion: Link to Certain Crimes or Offenses
79 The financial intermediary’s suspicion that triggers the reporting obligation must relate to the connection between the assets and certain crimes or offenses. Art. 9, para. 1(a) of the Anti-Money Laundering Act (AMLA) contains four subparagraphs, with several sub-variants, describing which offenses are relevant and what the connection must be between the assets in question and these offenses. It thus follows from the structure of the law that the suspicion cannot relate to just any criminal offense or factual situation, but only to those explicitly defined.
80 Subparagraph 1 of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) concerns the suspicion that the assets are related to one of the offenses set forth in Articles 260ter and 305bis of the Swiss Criminal Code (SCC), namely participation in or support of a criminal or terrorist organization and money laundering, respectively. This provision serves as a catch-all clause covering situations not covered by the other provisions. Furthermore , it is hardly possible to require the financial intermediary to conduct a detailed analysis of the elements of the two offenses; its reasonable suspicion is sufficient in any case.
81 Therefore, the “connection” to the aforementioned offenses must not be interpreted narrowly; it refers to any link that is sufficiently direct for the report to MROS to contribute to the criminal prosecution of the aforementioned offenses and, where applicable, to the forfeiture of the relevant assets.
82 regarding the first variant of paragraph 1, Art. 260ter of the Swiss Criminal Code prohibits participation in and support of a criminal or terrorist organization. This applies to organizations whose purpose is to commit acts of criminal violence or to obtain income through criminal means (so-called criminal organizations), or to commit acts of criminal violence aimed at intimidating a population or compelling a State or an international organization to perform or refrain from performing any act (so-called terrorist organizations) . In addition to mafia-style criminal syndicates, the concept of a criminal organization also encompasses terrorist groups. By contrast, extremist parties, opposition political groups, and organizations that strive through appropriate, non-criminal means to attain political power in their country of origin or that wage a struggle for freedom against dictatorial regimes are, in principle, not considered as such. B ParticipationB in a criminal or terrorist organization is intended to punish individuals who are functionally integrated into the criminal organization and who carry out activities aimed at furthering its criminal objectives, without these activities having to be, in and of themselves, illegal or constitute offenses. In the absence of such integration, support alone is sufficient; it consists of a conscious contribution to the promotion of the organization’s criminal activities, and proof of a causal contribution to a specific offense is not required. According to legal scholarship, the reference to Art. 260ter of the Swiss Criminal Code (CP) is intended to cover situations in which assets are linked to a criminal or terrorist organization but cannot be connected to a crime within the meaning of Art. 10(2) CP (a scenario covered by subparagraph 2; see infra N. 85 et seq.), nor are they subject to the control of such an organization (a scenario covered by subparagraph 3; see infra N. 94 et seq.), nor are they used to finance terrorism (a scenario covered by subparagraph 4; see infra N. 97 et seq.).
83 With regard to the reference to Art. 305bis of the Swiss Criminal Code (CP), namely money laundering, this provision applies to anyone who commits an act intended to obstruct the confiscation of assets that they know or should presume to be derived from a crime or an aggravated tax offense (see supra N. 63 et seq.). An act intended to obstruct confiscation is any conduct that hinders the criminal justice authorities to the proceeds of a crime or a qualified tax offense, thereby complicating the determination of the illicit origin of said assets. Thus, the provision primarily targets conduct intended to give said assets the appearance of legality, with the aim of reintroducing them into the legal economy and avoiding their confiscation by the authorities. The following, in particular, are considered acts intended to obstruct confiscation: (i) active physical concealment, (ii) the consumption of the assets but not their destruction, (iii) currency exchange transactions, particularly into another currency, (iv) transactions that go beyond a simple conversion of cash into book money or a simple bank deposit—such as, in particular, the deposit of money into an account whose holder is not the beneficial owner , (v) cash withdrawals that sever the “paper trail,” (vi) transfers or disposals between accounts abroad, to the extent that the transaction is actually likely to impede confiscation abroad, and (vii) the purchase or sale of real estate. By contrast, neither the investment of the assets in question in goods for personal use nor the mere deposit into a personal bank account —opened at the place of residence and used for routine private payments—do not, in and of themselves, constitute acts of obstruction. The same applies to the mere possession or safekeeping of tainted assets. With regard to domestic and international bank transfers, it should be noted that a mere extension of the “paper trail ” generally does not constitute an act of money laundering, as long as there are no other acts of concealment and the assets are still subject to forfeiture. Due to its accessory nature, the offense of money laundering requires, in addition to proof of the act of obstruction, proof of the predicate offense as well as the origin of the assets from the predicate offense.
84 Art. 9(1)(a)(1) of the Anti-Money Laundering Act (AMLA) has only a limited scope with respect to money laundering under subparagraph 2, which encompasses all assets derived from a felony or a qualified tax offense that are susceptible to laundering. Subparagraph 1 therefore ultimately applies to assets that do not derive from a felony or a qualified tax offense but that nevertheless a connection to money laundering. This is primarily the case with the consideration that the perpetrator of simple money laundering—that is, money laundering that is not aggravated within the meaning of Art. 305bis, para. 2, of the Swiss Criminal Code (CP)—receives for their actions, to the extent that it does not derive from the predicate offense.
85 Subparagraph 2 of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) is the most common in practice. It covers situations where the assets derive from a felony within the meaning of Art. 10(2) of the Swiss Criminal Code (SCC) or from an aggravated tax offense within the meaning of Art. 305bis, item 1bis of the Swiss Criminal Code (CP). This excludes offenses within the meaning of Article 10(3) of the Swiss Criminal Code (with the exception of aggravated tax offenses), as well as misdemeanors within the meaning of Art. 103 of the Swiss Criminal Code (CP). In substance, the assets subject to reporting correspond to those that may be the subject of money laundering within the meaning of Art. 305bis of the Swiss Criminal Code (CP).
86 With regard to the concept of origin, the Federal Supreme Court has ruled—admittedly in connection with Arts. 30bis 5bis and 70 of the Swiss Criminal Code, but in a manner applicable to Art. 9(1)(a)(2) of the Anti-Money Laundering Act (AMLA), that assets derive from a crime when the causal link to the crime is natural and adequate. Two clarifications are in order here.
87 First, “derive from” obviously does not mean “be intended for.” The causal link must therefore run in a specific direction. Indeed, if the assets were acquired legally, they are not subject to the reporting obligation simply because they are intended for subsequent use for criminal purposes, subject to the other scenarios set forth in Art. 9 of the Anti-Money Laundering Act (LBA). Similarly, as recently clarified by MROS in its negative typologies, when the financial intermediary’s client is the victim of fraudulent activities resulting in transfers to the fraudsters, no reporting obligation is triggered because the assets are lawful and become tainted, from a criminal law perspective, only after their transfer from the victim’s account to that of the perpetrators of the offense in question. The absence of criminal origin also applies in the event of losses to the financial intermediary’s own funds, for example due to cyberattacks or fraudulent payments; these assets never having been involved in a business relationship in the first place.
88 Second, a sufficient causal link undoubtedly exists for the direct proceeds of the principal offense (producta sceleris), as well as for the reward received by the perpetrator for committing the offense (pretium sceleris; see Art. 70(1) of the Swiss Criminal Code) . Furthermore, according to case law regarding Articles 305bis and 70 of the Swiss Criminal Code (CP), it is not necessary for the assets to result directly and immediately from the offense; this is similar to assets arising from a contract whose conclusion was facilitated by acts of corruption. The concept of “proceeds” referred to in Article 9 of the Anti-Money Laundering Act (LBA), when interpreted teleologically, may be even broader. Indeed, the Federal Administrative Court has held that Art. 9 of the Anti-Money Laundering Act (AMLA) is based on a broader objective than Art. 305bis of the Swiss Criminal Code (SCC), particularly with regard to prevention and the reputation of the Swiss financial center, and that, consequently, the reporting obligation must be interpreted to cover the greatest possible number of assets for which there are reasonable grounds to suspect criminal origin. Furthermore, the Federal Administrative Court emphasizes that, in practice, financial intermediaries are often unable to analyze in detail which offense the assets stem from and whether it constitutes a predicate offense to money laundering. Indeed, since reasonable suspicion is sufficient under Article 9 of the Anti-Money Laundering Act (AMLA), the financial intermediary is not required to establish the source with certainty. However, the suspicion must relate to a link that is as concrete as possible to a predicate offense (in the non-technical sense), as a report cannot be based on mere risk factors or the fact that the customers are suspected.
89 The reporting obligation under Art. 9(1)(a)(2) of the Anti-Money Laundering Act (AMLA) applies to assets derived from a crime, that is, an offense punishable by imprisonment for more than three years (Art. 10(2) of the Swiss Criminal Code) . In an international context—which is not uncommon in money laundering cases—the concept of a “crime” is always that defined under Swiss law, although the act must also be punishable under the law of the place where it was committed (see Art. 305bis, item 3, of the Swiss Criminal Code). Given that it will often be difficult for the financial intermediary to identify the specific crime or make the legal distinction between a felony and a misdemeanor, the requirement of a “crime” under Art. 9(1)(a)(2) of the Anti-Money Laundering Act (AMLA) should not be interpreted too strictly, especially since the reporting obligation does not require certainty but rather reasonable suspicion. According to a recent ruling by the Federal Criminal Court, “it is not necessary for the financial intermediary to know exactly what type of crime the assets stem from , nor is it necessary for the reasonable suspicion to be linked to a specific crime […]. In this context, knowledge of or a presumption regarding a serious predicate offense is sufficient to trigger the reporting obligation.” In cases of doubt regarding the legal classification of the predicate offense or its capacity to generate assets subject to forfeiture, a report must therefore be filed. An exemption from this obligation is possible only if it is established with certainty that there is no prior offense or that it does not constitute, respectively, a crime or (in a non-technical sense) a “serious offense.” This is particularly the case in the presence of a simple misdemeanor (Art. 103 Swiss Criminal Code) . The cautious approach mentioned above is, moreover, consistent with Art. 20(2) of the Anti-Money Laundering Ordinance (OBA) applicable to money transmitters (see infra, Chapter IV), which provides that a report to MROS must also be filed when the money transmitter cannot link the cash payments to a specific offense.
90 In addition to felonies, aggravated tax offenses within the meaning of Art. 305bis, item 1bis of the Swiss Criminal Code (CP) may also trigger the reporting obligation. The legal definition set forth in this provision is based on two cumulative conditions, which raise undeniable practical difficulties.
91 First, the legal definition covers offenses of forgery within the meaning of Art. 186 of the Federal Income Tax Act (LIFD) and tax fraud within the meaning of Art. 59(1) of the Federal Law on Indirect Taxes (LHID) in the context of taxes on income and wealth, profits and capital, as well as real estate gains. However, it is usually impossible for the financial intermediary to detect the use of forged documents—an essential element of these two tax offenses—because the intermediary typically does not have access to the relevant tax documents. In light of Art. 9(1)quater of the Anti-Money Laundering Act (AMLA), the central question is therefore often whether there are indications requiring the financial intermediary to conduct further investigations; this is the case, in particular, if the use of a forgery is characteristic of or necessary for the tax fraud in question. If the suspicions cannot be dispelled, the reporting obligation comes into play. With regard to tax offenses committed abroad, the relevant classification is that under Swiss law, as mentioned above for crimes. However, the act must also be punishable under the (foreign) law of the place where the act was committed. In this regard, the Explanatory Memorandum advocates a broad interpretation, holding that the punishability of “simple” tax evasion abroad is already sufficient.
92 Second, Art. 305bis, para. 1bis of the Swiss Criminal Code (CP) requires that the evaded taxes amount to more than 300,000 francs per tax period. The practical application of this threshold is somewhat facilitated by Art. 21 of the FINMA Anti-Money Laundering Ordinance (OBA-FINMA), pursuant to which financial intermediaries may apply the maximum tax rate of the client’s country of tax residence to determine whether the evaded taxes have reached 300,000 francs.
93 Finally, further clarification is needed regarding the concept of source in connection with tax offenses: the main issue here is that tax evasion generally does not directly generate assets, but rather a tax savings—that is, a lack of expenditure. Such assets are not in themselves traceable within the offender’s perpetrator. The Federal Supreme Court nevertheless recognizes that such savings, achieved through a tax offense, may be subject to forfeiture and thus constitute proceeds of money laundering in the event of a potential obstruction of their forfeiture. Legal scholars have therefore sought a criterion that would nevertheless allow them to be identified, through a sort of legal fiction. One approach that has been considered—but largely rejected—would be to consider that the taxpayer’s entire estate is tainted. Other, more measured solutions have also been proposed: (i) tainting limited to undeclared assets or those generally used to pay taxes; (ii) tainting of undeclared assets in proportion to the undue tax savings realized; (iii) tainting of undeclared assets up to the amount of the tax savings , assuming that this amount is either the first (the so-called “oil film” theory) or the last (the so-called “sediment” theory) to be reached by any acts of disposition. To the best of our knowledge, case law has not yet had the opportunity to clarify how, in practice, contaminated assets should be identified within a person’s estate in the event of an aggravated tax offense. There is therefore currently a state of uncertainty that is all the more regrettable given that criminal penalties may apply to acts of disposition involving such assets. Admittedly, in the more general context of the commingling of illicit assets with lawful assets—typically in a bank account—the Federal Supreme Court recently ruled in favor of the so-called “sedimentation” or “floor” approach, while reserving judgment on cases where the modus operandi corresponds to acts typical of money laundering. However, there is no indication at this stage that the reasoning in that ruling can be applied mutatis mutandis to the laundering of proceeds from a qualified tax offense.
94 Subsection 3 of Article 9(1)(a) of the Anti-Money Laundering Act (AMLA) refers to assets that are subject to the control of a criminal or terrorist organization. No prior offense is required, as long as the assets are subject to the control of such an organization.
95 The concept of a criminal or terrorist organization has already been discussed in connection with paragraph 1, to which reference is made (see supra N. 82).
96 Furthermore, the assets involved in the business relationship must be subject to the power of disposal of the criminal or terrorist organization. This concept also appears in Art. 72 of the Swiss Criminal Code (CP) on confiscation and may be interpreted analogously. Thus, one should not rely on a formal legal approach. What is decisive, first and foremost, is the economic conception of beneficial ownership, which includes the actual power to dispose of the assets. This is justified above all in light of the methods typically used by organized crime to manage its assets —namely, the use of shell companies or straw men, but also of bona fide third parties. Furthermore, the concept of power of disposition is closely related to that of “control,” which plays an essential role in property offenses and which, according to case law, consists of the ability and willingness to possess the assets (“in der tatsächlichen Sachherrschaft, verbunden mit dem Willen, sie exercise"). Consequently, a criminal organization clearly exercises power of disposition when the business relationship falls under its control or when members of the organization can, as part of their membership (or even on the organization’s orders), dispose of assets deposited with a financial intermediary. In this context, it is worth noting the second sentence of Art. 72 of the Swiss Criminal Code (CP), which contains a rebuttable presumption that assets belonging to a person who has participated in or supported a criminal or terrorist organization are presumed to be to the organization’s power of disposal. Although this provision is not directly applicable in the context of the Anti-Money Laundering Act (AMLA), the legal definition of “reasonable suspicion” under Art. 9(1quater) AMLA is very similar, since the financial intermediary is, in principle, required to conduct additional due diligence as soon as it has any doubt regarding a person’s membership in such an organization; only if it succeeds in dispelling all of its suspicions regarding the assets involved in the business relationship that it may refrain from reporting. The question of whether a criminal organization exercises power of disposal when its members are merely the beneficial owners of the assets depends on the organization’s actual ability and willingness to exercise control. However, even if the organization lacks power of disposal, Art. 9(1)(a)(1) of the Anti-Money Laundering Act (AMLA) may still be applicable. This provision simply requires a connection between the assets and the offense of participation in or support of a criminal or terrorist organization (see supra N. 80 et seq.).
97 Paragraph 4 of Art. 9(1)(a) of the AMLA refers to assets that are used to finance terrorism. This provision was introduced as part of the expansion of the AMLA to combat the financing of terrorism, notably based on recommendations from the FATF. While money laundering involves reintroducing illegally acquired capital into the legal economic system, in the context of terrorist financing, it is lawful funds that are, in principle, used for criminal purposes. These lawful funds are the subject of suspicion under paragraph 4. Within the framework of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA), this provision thus primarily covers funds that do not originate from a criminal offense (a scenario covered by paragraph 2; see supra N. 85) and that are not subject to the control of a terrorist organization (a scenario covered by paragraph 3; see supra N. 94 et seq.). The scope of application of subparagraph 4 therefore appears limited, given that the consideration for supporting a terrorist organization is deemed to derive from a crime and that the concept of power of disposal is interpreted broadly.
98 In practice, it will often be difficult for the financial intermediary to recognize the indicators of terrorist financing. As in Art. 260quinquies of the Swiss Criminal Code, to which Art. 9 of the Anti-Money Laundering Act (AMLA) explicitly refers, terrorism consists of an act of criminal violence intended to intimidate a population or to compel a state or an international organization to perform or refrain from performing any act, unless the act is intended to establish or restore a democratic regime or the rule of law, or to enable the exercise or protection of human rights. The concept of financing, for its part, must be interpreted broadly; it is sufficient that funds be made available to a person associated with terrorism or, again, as in Art. 260quinquies, para. 1, of the Swiss Criminal Code (CP), that they are merely gathered for future use for such purposes.
c. Threshold of Suspicion and Triggering Factor: Knowledge or Reasonable Suspicion
99 The reporting obligation under Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) is triggered if the financial intermediary knows or suspects, based on reasonable grounds, that the assets are linked to any of the offenses listed in items 1 through 4 above.
100 The term “know” means that the financial intermediary has no doubt regarding the existence of this link. In legal scholarship, it is often described as the highest degree of suspicion. The practical scope of this threshold of suspicion is limited, however, since it is rare for a financial intermediary to have certain knowledge of a link between the assets and a criminal offense. Legal scholarship discusses the relatively theoretical scenario in which the reason for the transfer would be disclosed to the financial intermediary by the contracting party or would be evident from a court decision. Even in such cases, however, the source must be credible for the financial intermediary to be said to “know.” The term “know” in the context of Art. 9 of the Anti-Money Laundering Act (AMLA) does not correspond to the element of intent in Art. 305bis of the Swiss Criminal Code (SCC), as intent—in relation to money laundering—generally plays no role under Art. 9 of the AMLA.
101 The threshold that is most often decisive in practice is therefore that of a presumption based on reasonable suspicion. This concept has been codified since January 2023 in Art. 9, para. 1quater of the Anti-Money Laundering Act (AMLA), according to which there is reasonable suspicion when the financial intermediary “has a concrete indication or several clues suggesting that the criteria defined in paragraph 1, subparagraph a, might be met with respect to the assets involved in the business relationship, and that the additional clarifications carried out pursuant to Article 6 do not dispel the suspicions.” This legal definition, modeled on recent Federal Supreme Court case law and the definition set forth in the Anti-Money Laundering Ordinance (OBA) for dealers, was adopted by the Federal Parliament shortly before the final vote on the comprehensive revision of the Anti-Money Laundering Act (LBA) in 2021. It thus follows from Art. 9 para. 1quater of the Anti-Money Laundering Act (LBA) that the financial intermediary, as soon as it harbors suspicions, must continue its investigations until it ascertains the facts. Either the transaction that appeared suspicious is legitimate, or its doubts are not fully dispelled, in which case its suspicions are deemed well-founded and must be reported to MROS. From From a theoretical perspective, this process can be divided into two stages: the initial suspicion and further clarification.
102 In the first stage, leading up to the threshold that triggers the reporting obligation, the financial intermediary must have a concrete indication or several clues suggesting that the criteria defined in para. 1(a) might be met (Art. 9(1quater) AMLA, first part of the sentence). It is not easy to determine what the legislature—and, before it, case law and the Federal Council—meant by the reference to “a concrete indication” or “several indications.” This wording primarily conveys the idea that suspicion depends on both the quality and the quantity of the elements underpinning it. Thus, the circumstances that may give rise to suspicion are numerous and can stem from a wide variety of sources, both internal and external to the financial intermediary, such as the media or information from criminal prosecution authorities. However, these circumstances must reach a certain minimum threshold of suspicion. Indeed, since the adoption of the Anti-Money Laundering Act (AMLA), established case law has consistently emphasized that, in principle, it is not the responsibility of the financial intermediary to systematically search for potential criminal conduct in every transaction, while specifying that the financial intermediary is required to exercise the due diligence called for by the circumstances. This minimum threshold generally corresponds to that set forth in Art. 6 of the Anti-Money Laundering Act (AMLA), specifically paragraph 2, since the second part of the legal definition now enshrined in Art. 9, para. 1quater of the AMLA expressly refers to additional clarifications within the meaning of that article. This also appears consistent from a systematic and teleological perspective, as the reporting obligation serves as a link between the due diligence obligations—of which Art. 6 of the AMLA is a part—and the measures taken by criminal prosecution authorities . It should also be noted that the existence of signs or indications of money laundering must be assessed ex ante—that is, by returning to the time when the events occurred—which is particularly relevant in connection with the criminal liability incurred under Art. 37 of the Anti-Money Laundering Act (AMLA) in the event of a breach of the reporting obligation.
103 With reference to legal scholarship, the case law cites, as examples of indications of money laundering, the urgency of a financial transaction, the inability to contact the customer, the customer’s refusal to provide the information necessary to clarify the economic background of the transaction or the business relationship, or media reports regarding the initiation of criminal proceedings concerning a crime against the customer or the beneficial owner of the assets involved in the business relationship. In accordance with case law, reference should also be made to the list of indicators of money laundering in the annex to the OBA-FINMA. While this list expressly states that, taken individually, these indicators generally do not provide sufficient grounds for suspicion of money laundering, and that it is rather the combination of several of these elements that may indicate its presence. Nevertheless, it is entirely possible, in light of the legal framework—if not the wording of Art. 9(1)quater of the Anti-Money Laundering Act (AMLA), that the presence of a single indicator of money laundering — if it cannot be dispelled by further inquiries — is sufficient to trigger the reporting obligation. According to the general indicators contained in the annex to the FINMA Anti-Money Laundering Ordinance (OBA-FINMA), transactions present a particular risk of money laundering when they have no recognizable economic purpose or an absurd economic purpose, when they involve a rapid withdrawal of assets without a plausible justification, or when they are inconsistent with the information known to the financial intermediary regarding the customer or the business relationship. Any customer who provides false or misleading information, or who refuses, without valid reason, to provide the information requested by the financial intermediary, is also considered suspicious. Furthermore, regular transfers to or from high-risk countries, or countries near areas of terrorist activity, may constitute indicators of money laundering. In addition to these general indicators, the Annex to the OBA-FINMA also contains specific indicators for particular transactions, such as cash, account, or deposit transactions, as well as fiduciary transactions. Finally, there are indicators that the Annex considers to be “qualified.” These primarily concern client behavior that reveals a clear intent to conceal or manipulate financial transactions, such as a client’s desire to close an account in order to open new ones without leaving a paper trail, a request for fictitious receipts, or the desire to make transfers with an inaccurate payer or to use the institution’s internal accounts (such as Nost ro or “Miscellaneous”). Furthermore, the existence of criminal proceedings against the customer for corruption, embezzlement of public funds, or a serious tax crime or offense constitutes a qualified indication of money laundering.
104 If there is one or more indications suggesting that the criteria defined in Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) might be met, the second step toward meeting the threshold set forth in Art. 9(1)quater of the Anti-Money Laundering Act (AMLA)—and which will effectively trigger the reporting obligation—requires that the additional inquiries conducted by the financial intermediary pursuant to Art. 6 of the Anti-Money Laundering Act (AMLA) do not dispel the suspicions. It follows from the legal definition that “reasonable suspicion” should not be understood as suspicion that has intensified or been confirmed as a result of the inquiries, but rather as suspicion that could not be entirely dispelled following the inquiries. The distinction is subtle, but nonetheless essential. In the event of (mere) doubt remains following the clarifications, there is an obligation—and not merely a right—to report.
105 This raises the question of the procedures for clarifications that may, or rather must, be carried out by the financial intermediary before suspicions are deemed well-founded. As a general rule, in order to reach a decision, the financial intermediary must clarify the economic background and purpose of a transaction or the business relationship (see Art. 6(2) AMLA). According to case law, the business relationship must always be assessed as a whole, as the specific obligation to clarify is not limited to isolated transactions. The practical implementation of these clarifications involves a balancing act between the requirements of speed and quality.
106 Regarding the timing of additional clarifications, one can, on the on the one hand, draw on Art. 17 of the Anti-Money Laundering Ordinance (OBA) -FINMA, which requires the financial intermediary to undertake additional due diligence as soon as initial suspicions arise and to complete it as quickly as possible. This is also consistent with the requirement of immediacy arising from Art. 9 of the Anti-Money Laundering Act (see infra N. 188 et seq.). On the other hand, despite these requirements for speed, the quality of the communication—and thus the scope of the investigations—must not be neglected, as MROS rightly emphasized in its 2024 Annual Report: “[The system under Art. 9 of the Anti-Money Laundering Act] presupposes that [financial intermediaries] can take the time necessary to conduct the required due diligence to an adequate degree. The time required varies from case to case depending on the risk, the facts, and the complexity of the business relationship. The [financial intermediary] needs a certain degree of flexibility in choosing how to clarify the case and the time required to do so. Consequently, it is not possible to generalize about the correct or appropriate duration required for clarifications. […] Nevertheless, the purpose of clarifications is for the [financial intermediary] to examine the facts in depth and form a well-founded opinion. Suspicion reports and the must meet certain substantive quality standards so that MROS can process them effectively. Incomplete or unclear facts complicate the analysis or even render it impossible. Such suspicious activity reports clog the reporting system and tie up unnecessary resources at MROS. They have a detrimental effect on the efficiency of report processing and, overall, weaken the anti-money laundering .”
107 Consequently, one of the most important questions arising in light of Art. 9(1)quater of the Anti-Money Laundering Act (AMLA) is undoubtedly that of thescope of the additional due diligence that the financial intermediary must undertake. Such due diligence must serve the purpose of the law, which aims to enable the confiscation of assets of illicit origin, or, more generally, to support criminal prosecution efforts. According to the aforementioned case law, the financial intermediary must conduct its investigations into the business relationship and/or the disputed transaction in a manner that allows it to ascertain the facts. However, the aim is to verify plausibility, without the financial intermediary being required to obtain clarifications to the point of establishing absolute certainty. The scope of the clarifications to be obtained will thus depend on the specific circumstances of the individual case. The financial intermediary must act with due diligence and, to the extent possible and reasonable, seek the clarifications that would dispel the initial suspicion.
108 When the clarifications lead to an intensification of the suspicion, it is easier to conclude that there are well-founded suspicions. Thus, case law holds that the report must be filed without delay—even if clarifications are still ongoing—if it appears that, in all likelihood, the doubt cannot be dispelled in any event. This may be the case if customers refuse to provide the requested information, it being noted that the absence of a response for a certain period may, in itself, give rise to additional doubts.
109 On the other hand, when the clarifications reduce the suspicion, without however completely dispelling it, it should be permissible, from a proportionality standpoint, to conduct a new round of clarifications if the financial intermediary has sufficient reason to believe that they may be successful and that it can carry them out within a reasonable timeframe. In each specific case, a balancing of interests should therefore be conducted. This also applies where the clarifications are unsuccessful because the counterparty does not immediately respond to the financial intermediary’s requests, although it should be noted that the information provided by the counterparty is the sole source of information. If the clarifications carried out within the described framework do not dispel the suspicions, a report must be filed without fail, even if the financial intermediary ultimately harbors merely a simple doubt.
110 The question also arises as to whether further clarifications must be undertaken even in the presence of an obvious or immediately well-founded suspicion. The wording of Art. 9(1)quater of the Anti-Money Laundering Act (AMLA) suggests that the financial intermediary must, in all cases, conduct clarifications before filing a report with MROS. This is also the position expressed by MROS, which is of the opinion that “financial intermediaries must always conduct due diligence within the meaning of Art. 6, para. 2, the AMLA before submitting a report.” According to MROS, this provision ensures the quality of reports submitted by financial intermediaries and the effectiveness of Switzerland’s anti-money laundering framework. MROS notes in this regard that all reports must be as precise as possible.
111 The Federal Council’s Message takes the same view, but qualifies this statement by specifying that “in principle,” additional clarifications are necessary. It justifies its position by noting that it is necessary to avoid so-called “defensive” reports by financial intermediaries, who might otherwise be led to report any unusual transaction or any alert flagged by their monitoring system. This concern of the Federal Council appears legitimate. The practice of defensive reports is also criticized by MROS, even though it is understandable given the sanctions—particularly criminal ones—faced by financial intermediaries in the event of a breach of the reporting obligation.
112 In our view, when the financial intermediary knows—that is, has no doubt (or virtually no doubt)—that the assets are linked to a criminal offense (see supra N. 100), it should be able to dispense with additional clarifications—particularly for the sake of expediency—as long as the quality of the report’s content is ensured. This applies a fortiori in cases where the business relationship is active and potentially confiscable assets are still available, bearing in mind that the purpose of the reporting obligation is to detect offenses and to enable the seizure of related assets as quickly as possible to seize assets linked to such offenses. The decision to forgo any additional clarifications is also supported by recent case law. Indeed, case law holds that when a financial intermediary learns that criminal proceedings have been initiated against its client for a serious offense and that the assets in question could be linked to those proceedings, it must, as a general rule, opt for immediate reporting.
113 To determine whether there are reasonable grounds for suspicion, one must adopt an ex ante perspective. Given the clear wording of Art. 9 of the Anti-Money Laundering Act (AMLA), the facts known to the financial intermediary at the time the reporting was required are decisive, and circumstances discovered subsequently cannot be taken into account.
114 Furthermore, the question arises as to whether the obligation to report is triggered only when the financial intermediary has actually harbored reasonable suspicion, or whether it may also apply when the financial intermediary should have harbored such suspicion by exercising the diligence required by the circumstances. The practice of the Federal Criminal Court in applying Art. 37 of the Anti-Money Laundering Act (AMLA) has opted for the latter approach, which in a sense amounts to penalizing the violation of the obligation to investigate (Art. 6 AMLA). Such an approach seems hardly compatible with the plain language of Art. 9(1)(a) AMLA, which focuses on knowledge or suspicions (actually) held by the financial intermediary in question. It also conflicts with the principle of legality in criminal law (Art. 1 of the Swiss Criminal Code). That said, Art. 9(1)quater of the Anti-Money Laundering Act, introduced on January 1, 2023, constitutes a first step toward the—desirable—objectivization of the trigger for the reporting obligation. Indeed, it provides that suspicions are well-founded whenever the financial intermediary “has a concrete indication or several clues suggesting that the criteria in paragraph 1(a) could be met with respect to the assets involved in the business relationship.” The objectification is not, however, complete, since the provision further requires that “the additional clarifications carried out pursuant to Article 6 do not dispel the suspicions ,” which once again falls within the discretion of the financial intermediary concerned. These observations highlight that Art. 9 of the Anti-Money Laundering Act (AMLA) contains inconsistencies that would justify a comprehensive revision.
115 Finally, it should also be noted that, in many cases, suspicions can be dispelled through additional due diligence. This situation forms the basis for Article 22a(2) of the OBA-FINMA, which provides that financial intermediaries have an obligation to document, in a so-called No-AML report, the reasons why they did not file a report after dispelling any suspicions through additional clarifications. To the best of our knowledge, this obligation is typically incorporated into the regulations of self-regulatory organizations (SROs) for financial intermediaries not subject to the OBA-FINMA.
2. Obligation in the Event of Termination of Negotiations (para. 1(b))
116 Pursuant toArt. 9(1)(b) of the Anti-Money Laundering Act (AMLA), financial intermediaries are required to file a report with MROS if they terminate negotiations aimed at establishing a business relationship due to well-founded suspicions that assets intended to be involved in the business relationship are linked to certain crimes or offenses.
117 This provision implements the FATF recommendations. Its objective is, on the one hand, to prevent the reporting obligation from being circumvented by terminating negotiations aimed at establishing a business relationship and, on the other hand, to enable the criminal justice authorities to be informed of illicit assets so that they can take appropriate measures. Statistics show that in recent years, approximately 5 to 8% of reports to MROS have resulted from the termination of negotiations.
a. Subject of the Suspicion: Assets Intended for Use in a Business Relationship Under Negotiation
118 Unlike Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA), which concerns assets involved in an already established business relationship, Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA) applies even before such a relationship is established—namely, during the negotiation phase. Consequently, the subject of the suspicion consists of assets intended to be involved in a business relationship currently under negotiation.
119 The concepts of “assets” and “business relationship,” as well as the implicit condition—erroneously posited by certain court decisions and some legal scholars—that these assets must be confiscatable, have already been discussed in the context of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA). Reference may therefore be made to the above discussion (see supra N. 75 et seq.).
120 The central question is during what period the assets must be considered “intended to be involved in a business relationship under negotiation”—or, to put it another way, when a mere contact becomes a negotiation regarding a business relationship and when such a negotiation leads to a business relationship, since Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA) applies only during this intermediate period of negotiations.
121 With regard to the start of negotiations, the Federal Council’s Explanatory Memorandum expressly excludes “initial discussions during the period when the financial intermediary does not yet have sufficient information.” It must therefore be determined whether an exchange of information has already taken place between the financial intermediary and the potential client. Personalized information appears relevant in this context, excluding, for example, the mere communication of the terms and conditions of financial services by the financial intermediary. Thus, the client must have provided a minimum amount of information about themselves and the desired financial services for it to be considered that negotiations have begun under the terms of Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA).
122 With regard to the end of negotiations, there is a lively debate in legal scholarship, and to our knowledge, case law has not yet settled the issue. Legal scholars refer sometimes to the formal conclusion of the contract, sometimes to the receipt of funds, sometimes to the decision to activate the account, or even to the client’s ability to use the services. It seems to us that reaching an agreement on the essential elements of the business relationship should be the relevant criterion (see supra N. 76). In any case, from a teleological perspective, the precise moment at which negotiations give way to a business relationship is, in our view, not decisive for the interpretation of Art. 9 of the Anti-Money Laundering Act (AMLA). Indeed, as Villard points out, “one of two things will happen: either the financial intermediary terminates the negotiations due to a suspicion, in which case its decision will be based on Art. 9(1)(b) of the Anti-Money Laundering Act, or it does not do so, in which case the report must, if applicable, be based on Art. 9(1)(a) or (c) of the Anti-Money Laundering Act.” The most important point, therefore, is that a report to MROS must be filed in the presence of reasonable suspicion, regardless of the specific legal basis underlying it. That said, the timing of the termination of negotiations is relevant in determining whether the financial intermediary can still terminate the relationship with its client. Indeed, while terminating negotiations is possible, even in the case where the financial intermediary has reasonable suspicion, Art. 12a(1) OBA prohibits the financial intermediary from terminating the business relationship, once it has been established, when the conditions for reporting are met—regardless of whether a report has actually been filed—subject to the exceptions provided for in Art. 12b OBA (see infra N. 201 et seq.). The fact that the assets have not yet come under the financial intermediary’s control is, moreover, irrelevant in this context.
b. Nature of the Suspicion: Link to Certain Crimes or Offenses offenses
123 As with Art. 9(1)(a) AMLA, the suspicion within the meaning of Art. 9(1)(b) AMLA must relate to the fact that the assets have a connection to certain crimes or offenses. Art. 9(1)( b of the Anti-Money Laundering Act (AMLA) refers to subparagraph (a), whose paragraphs 1 through 4 are therefore directly applicable. Thus, the reporting obligation applies if the assets intended to be involved in the business relationship (1) are related to one of the offenses listed in Articles 260ter or 305bis of the Swiss Criminal Code (CP), (2) derive from a qualified tax crime or misdemeanor, (3) are subject to the control of a criminal or terrorist organization, or (4) are used to finance terrorism (see supra N. 80 et seq.).
124 Conversely, in the absence of such a reference, a match with a terrorist list under Art. 9(1)(c) in conjunction with Art. 22a(2) and (3) of the Anti-Money Laundering Act (AMLA) does not fall within the scope of Art. 9( 1(b) of the Anti-Money Laundering Act (see infra N. 138). This situation is considered unsatisfactory by legal scholars, who note that “the only solution would be that, when faced with such a suspicion, [the financial intermediary] should not terminate the negotiations but should establish a business relationship in order to be able to make the report.” In our view, a report could nevertheless be based on Art. 9(1)(b) in conjunction with Art. 9(1)( a, subparagraphs 3 and/or 4 of the Anti-Money Laundering Act (AMLA) in such a scenario.
125 The requirement of a link to the offenses set forth above is important, as it implies that the financial intermediary’s suspicion must not relate exclusively to the potential client as a person, but to the assets that the client intends to bring into the business relationship . In this regard, reference may be made to what has already been discussed in connection with Art. 9(1)(a) AMLA (see supra N. 75).
c. Threshold for Suspicion: Well-Founded Suspicion
126 Art. 9(1)quater AMLA, which defines the concept of “well-founded suspicion,” is also applicable in the context of Art. 9(1)(b) AMLA. Consequently, the threshold of suspicion triggering the reporting obligation under Art. 9(1)(b) AMLA is, in principle, the same as that under Art. 9(1)(a) AMLA, to which reference is made (see supra N. 101 et seq.). However, three specific features must be taken into account.
127 First, Art. 9(1)(b) of the Anti-Money Laundering Act does not mention the “knowing” variant; that is to say, strictly speaking, the provision does not cover the scenario where the financial intermediary is aware of the link between a criminal offense and the assets intended for the proposed business relationship. In our view, this constitutes a true gap in the law, as there is no indication that the legislature intended to exempt the financial intermediary from the reporting obligation in such a case, while subjecting them to such an obligation in the presence of reasonable suspicion. It must therefore be concluded that Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA) applies, a fortiori, in cases where the financial intermediary has actual knowledge of a fact subject to reporting (see supra N. 100).
128 Second, the question arises as to whether additional clarifications are necessary for the suspicion to be deemed well-founded. One argument in favor of this view lies in the wording of Art. 9(1)quater of the Anti-Money Laundering Act (AMLA), which also applies to Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA) and requires the conduct of further due diligence. On the other hand, the Federal Council’s Message on the extension of the reporting obligation to the negotiation phase is equally clear in the opposite direction, stating that “requesting additional information could arouse the customer’s suspicion.” Therefore, in the event of a breakdown in negotiations aimed at establishing a business relationship, the financial intermediary is required to file a report only on the basis of the information available to it at the time of the breakdown. The extension of the reporting obligation does not impose any additional duty of clarification on the financial intermediary. Thus, the financial intermediary has no obligation to request additional information from the ‘client’ or to take specific investigative measures to substantiate its suspicions.” Legal scholarship concurs with the Federal Council’s view.
129 However, several points warrant mention. On the one hand, the concept of “reasonable suspicion” was codified in Art. 9(1)quater of the Anti-Money Laundering Act (AMLA) years after the publication of this Federal Council Message, the relevance of which is thus open to question. On the other hand, the concern regarding the risk of tipping-off, which underlies the position expressed by the Federal Council, is not specific to the case of Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA), but obviously applies as well in the context of subparagraph (a). Thus, in our view, based on the wording of Art. 9(1)quater of the Anti-Money Laundering Act, that conducting additional due diligence prior to a potential breakdown in negotiations remains a condition—in principle, a necessary one—for establishing a reasonable suspicion and thereby triggering the reporting obligation provided for in Art. 9(1)( b of the Anti-Money Laundering Act, with the scope and nature of the clarifications naturally having to be adapted to the circumstances of the specific case. However, this does not apply to situations involving obvious or immediately well-founded suspicions; when the financial intermediary knows, or has virtually no doubt, that the assets intended to be involved in the future business relationship are linked to a criminal offense, it should be able to dispense with further clarifications, particularly for reasons of expediency, as long as the quality of the communication’s content is guaranteed (see supra N. 110 et seq.).
130 Third, unlike Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA), the reporting obligation under Art. 9(1)(b) of the AMLA is not yet triggered by the mere existence of , but also requires that the financial intermediary terminate negotiations on the basis of such well-founded suspicions (see infra N. 131) . If, despite well-founded suspicions, negotiations are not terminated and the business relationship is established, the financial intermediary is not relieved of its reporting obligation; rather, the obligation must then be based on Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA).
d. Triggering Event: Termination of Negotiations Due to Well-Founded Suspicions
131 The event that triggers the reporting obligation under Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA) is the termination of negotiations aimed at establishing the business relationship business relationship due to well-founded suspicions.
132 The concept and temporal scope of negotiations have already been addressed in the context of the subject matter of the suspicion (see supra N. 121 et seq.).
133 The term “termination” must be understood in a broad sense. It includes the explicit or implicit expression of the intention to no longer wish to negotiate or enter into the contemplated business relationship. Any rejection by the financial intermediary of the customer or of the contemplated business relationship, regardless of its nature, must suffice.
134 Furthermore, the termination of negotiations must occur due to reasonable suspicion. If negotiations are terminated for other reasons or at the client’s initiative, there is no obligation to report. The same applies if the financial intermediary only develops reasonable suspicion after the negotiations have been terminated for other reasons.
135 Once the report has been filed, the financial intermediary should not draw any conclusions in the event of failure transmission of the report by MROS to a criminal prosecution authority. Indeed, the absence of transmission does not necessarily mean that the proposed business relationship is risk-free and that negotiations should resume without further consideration. Furthermore, the financial intermediary is in no case informed by MROS of the status of its report after the termination of the business relationship (see Art. 23(5) AMLA).
3. Obligation in the Event of a Match with a Terrorist List (para. 1(c))
136 The reporting obligation set forth in Art. 9( 1(c) of the Anti-Money Laundering Act (AMLA) differs from the scenarios covered by subsections (a) and (b) in that it does not concern financial assets, but rather the question of whether data regarding a contracting party, beneficial owner, or authorized signatory of a business relationship or transaction matches a terrorist list, with the threshold for suspicion based on the knowledge of the financial intermediary or on based on additional clarifications.
a. Subject of the suspicion: Information concerning a contracting party, beneficial owner, or signatory
137 Suspicion within the meaning of Art. 9(1)(c) of the Anti-Money Laundering Act (AMLA) relates to information concerning a contracting party, beneficial owner, or authorized signatory of a business relationship or transaction. A link to financial assets is not required.
138 The concept of “business relationship” has already been discussed above (see supra N. 76). The concept of “transaction” generally covers any legal act in the context of financial transactions, such as acceptance, safekeeping, the investment, or the transfer of assets. To the extent that the reporting obligation in the event of a match with a terrorist list presupposes a business relationship or a transaction, it does not apply in the event of a breakdown in negotiations due to suspicions of such a match; it should be noted that Art. 9(1)(b) AMLA is also inapplicable, given its to the grounds set forth solely in Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) (see supra N. 124).
139 The contracting party is the formal counterparty to the contract, that is, the person with whom the financial intermediary establishes the business relationship or on whose behalf it executes the transaction. The beneficial owner is, according to case law, the natural or legal person who has the de facto ability to dispose of the assets and is therefore the person to whom these assets belong from an economic perspective. Only an economic analysis is relevant; formal legal constructs are of no significance. However, the concept of beneficial owner requires clarification in the context of a transaction: in accordance with the objective of preventing terrorist financing, it refers not only to the person who initially controlled the assets from from an economic standpoint, but also the person who acquires that economic control through the transaction. Finally, the authorized signatory of a business relationship is the person authorized to bind the contracting party to the financial intermediary, either as a corporate officer or as a representative. As a general rule, these persons must be known to the financial intermediary. Indeed, the Anti-Money Laundering Act (AMLA) requires the financial intermediary to verify the identity of the contracting party and to identify the beneficial owner with the diligence required by the circumstances (Art. 3–5 AMLA). Furthermore, the financial intermediary must determine who holds a lasting power of attorney over an account or a custody account (Art. 7(1) AMLA in conjunction with Art. 22 and Art. 39(1)(c) AML-FINMA).
140 The question of whether the obligation under Art. 9(1)(c) AMLA also applies to former contracting parties, beneficial owners, and authorized signatories has, to our knowledge, not yet been decided by the courts. A literal interpretation of Art. 9(1)( (c) of the Anti-Money Laundering Act (AMLA) suggests that the match with a terrorist list must be current. Furthermore, the case law of the Federal Supreme Court, which extends the reporting obligation under Art. 9(1)(a) of the AMLA to beyond the end of a business relationship (see supra N. 32 et seq.) does not seem relevant in this context, as it focuses on the continued existence of confiscable assets, whereas the assets involved in the business relationship are not decisive for the purposes of Art. 9(1)(c) of the Anti-Money Laundering Act. In fact, the financial intermediary must file a report pursuant to Art. 9(1)(c) of the Anti-Money Laundering Act (AMLA) regardless of any link between the assets and terrorist activities (see supra N. 137 and infra N. 141 et seq.).
b. Content of the Suspicion: Match with a Terrorist List
141 The suspicion concerns the match between data regarding the aforementioned persons and data relating to terrorist activities, transmitted to the financial intermediary pursuant to Art. 22a, para. 2 or 3, of the Anti-Money Laundering Act (AMLA).
142 The relevant data is based on an international notification system that is implemented in Swiss law by Art. 22a of the Anti-Money Laundering Act (AMLA). This refers to data “communicated and published by another state concerning individuals and organizations that, in accordance with United Nations Security Council Resolution 1373 (2001), have been listed in that state as engaging in or supporting terrorist activities” (Art. 22a, para. 1, AMLA). The Federal Department of Finance acts as the central recipient at the international level and then forwards the data—that is, the lists received from foreign states—to the supervisory authorities, namely FINMA, the Federal Gaming Board, the Intercantonal Gaming Supervisory Authority, and the Central Office for the Control of Precious Metals, which in turn forward them to the financial intermediaries under their supervision (Art. 22a, paras. 1 and 2, AMLA). For a list to be transmitted, first, another state must have provided it to Switzerland as part of a defined procedure or informally; the Swiss Confederation is not required to search for lists of terrorists and terrorist organizations worldwide. Second, only foreign lists that have already been published in their country of origin may be transmitted. Third, lists of terrorists and terrorist organizations provided to Switzerland by a foreign state may be transmitted only if they are based on United Nations Security Council Resolution 1373. Adopted in the wake of the September 11, 2001, attacks, this resolution also sets forth minimum requirements for the designation of terrorists or terrorist organizations . If a list has been transmitted to the financial intermediary in violation of these rules, there is, in principle, no reporting obligation under Art. 9(1)(c) of the Anti-Money Laundering Act (AMLA); however, such a list may certainly give rise to an initial suspicion under Art. 9(1)(a) of the AMLA.
143 A contracting party, beneficial owner, or authorized signatory matches the terrorist lists when they refer to the same person, bearing in mind that a suspicion of a match is sufficient (see infra N. 144).
c. Threshold for Suspicion and Triggering Event: Knowledge or Reasonable Suspicion
144 The reporting obligation under Art. 9(1)(c) of the AMLA is triggered if the financial intermediary “knows or suspects, based on clarifications carried out pursuant to Art. 6( 2(d) [AMLA]” that the contracting party, beneficial owner, or authorized signatory appears on a terrorist list.
145 The concept of “knowing” is the same as that referred to in the context of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA). It presupposes that the financial intermediary has no doubt regarding the match (see supra N. 100).
146 Although the wording of Art. 9(1)(c) of the AMLA does not refer to reasonable suspicion but only to a presumption of a match, the requirement of suspicion corresponds in principle to this concept. Two reasons support this interpretation: on the first, the legal definition of “reasonable suspicion” contained in Art. 9(1)quater of the Anti-Money Laundering Act (AMLA) refers—at least in the first part of the sentence—to paragraph 1 in its entirety and not solely to subparagraphs (a) and (b) of that paragraph. Second, this legal definition is based on the principle that reasonable suspicion exists whenever the indications cannot be dispelled by further clarifications carried out pursuant to Art. 6 of the Anti-Money Laundering Act (AMLA)—a principle that also appears in Art. 9(1)(c) of the AMLA, which refers to Art. 6(2)( d of the AMLA. Consequently, reference should be made to the explanations regarding the concept of “reasonable suspicion” set forth in the commentary on Art. 9, para. 1(a) of the Anti-Money Laundering Act (see supra N. 101 et seq.), subject to the following clarifications, which, from a doctrinal perspective, concern initial indications and additional clarifications.
147 The first step toward the threshold of suspicion that triggers the reporting obligation is that the financial intermediary hasindications suggesting a match within the meaning of Art. 9(1)(c) of the Anti-Money Laundering Act (AMLA), thereby requiring the financial intermediary to carry out the additional clarifications provided for in Art. 6(2)(d) of the AMLA. In this context, the question arises as to whether the financial intermediary is legally obligated to systematically compare the terrorist lists provided with its contracting parties, beneficial owners, and authorized signatories. While such an obligation certainly does not expressly arise from Art. 9(1)(c) of the Anti-Money Laundering Act (AMLA), this provision would be rendered meaningless and defeat its purpose if the financial intermediary were allowed to ignore the terrorist lists. From a teleological perspective, and in light of Art. 6( 2(d) of the Anti-Money Laundering Act (AMLA), it is therefore necessary for the financial intermediary to regularly conduct a systematic comparison—at least a cursory one—between its databases and the lists in question. This comparison will most often reveal indications of a match with the terrorist lists. However, it cannot be entirely ruled out that indications of a match may arise in other ways.
148 The report cannot be based on just any indications. Rather, the financial intermediary is required to first conduct the additional inquiries provided for in Art. 6, para. 2, subpar. of the Anti-Money Laundering Act (AMLA). According to the Federal Council’s Explanatory Memorandum, the purpose of this is to ensure that the financial intermediary is able to explain why it knows or suspects that the contracting party, beneficial owner, or authorized signatory actually corresponds to a listed terrorist person or organization. However, according to the Explanatory Memorandum, the report must be filed even if the financial intermediary is not absolutely certain that the person in question truly corresponds to the listed individual, as a partial match of the data may also give rise to a reasonable suspicion. This is the case, for example, when there are several different spellings for the same name. Similar to the legal definition of reasonable suspicion under Art. 9(1)quater of the Anti-Money Laundering Act (AMLA), reporting is thus already required when further clarifications fail to dispel the suspicion of a match. However, while the cross-reference in Art. 9(1)(c) of the Anti-Money Laundering Act (AMLA) to Art. 6(2)(d) of the AMLA suggests that, in accordance with the introductory sentence of the latter provision, the background and purpose of the transaction or business relationship should be clarified prior to reporting, this cannot be the intended meaning of the provision. Indeed, the reporting obligation is triggered by (reasonable) suspicions that personal data matches terrorist lists, and not by the background or purpose of the transaction or business relationship in the strict sense.
C. Consequence: Reporting Obligation and Parallel Obligations
149 When the conditions for the reporting obligation under Art. 9(1)( a, b, or c of the Anti-Money Laundering Act (AMLA) are met, the financial intermediary must immediately file a report with MROS. The procedures for this reporting (see below, Chapter VI), its effects—particularly regarding the financial intermediary’s parallel obligations (see below, Chapter VII)—and the consequences of non-compliance (see below, Chapter VIII) will be discussed in greater detail.
IV. Reporting Obligations of Traders (para. 1bis)
A. Applicable Parties: Dealers
150 Art. 9, para. 1bis of the AMLA establishes a reporting obligation corresponding to that set forth in Article 9(1)(a) of the Anti-Money Laundering Act (AMLA), but directed at merchants. This term refers to natural or legal persons who, in the course of their business, trade in goods and receive cash as payment (Art. 2(1)(b) AMLA; see Art. 13 et seq. of the Anti-Money Laundering Ordinance (AMLO)). Furthermore, the personal scope of application of Art. 9 of the Anti-Money Laundering Act (AMLA) has been discussed above (see supra N. 19 et seq.).
B. Conditions
1. Preliminary Remarks: Limitation to Significant Trading Transactions
151 Before addressing the conditions expressly set forth in Art. 9, para. 1bis of the AMLA, the central question arises regarding the material scope of material scope of application of the reporting obligation for traders. The question is whether this obligation applies to any trading transaction or only to significant trading transactions—that is, those involving more than 100,000 francs. The various methods of interpretation lead to partly differing conclusions; legal scholarship is divided, and case law has not yet resolved the issue.
152 The clear wording of Art. 9(1)bis of the Anti-Money Laundering Act (AMLA) does not allow for the inference of a restriction on the material scope of application. The text of the provision states—in general terms—that a dealer must file a report if it has reasonable suspicion that the cash used in a transaction is linked to a crime or misdemeanor. There is is not a matter of including only certain commercial transactions. Furthermore, the legal definition of a merchant imposes no restriction in this regard, as it covers any person who, in the course of their business, trades in goods and receives cash as payment (Art. 2, para. 1, let. b, AMLA). The term “transaction” is not defined by the AMLA.
153 Given the clear and unambiguous wording of the law, it may in principle be deviated from only if there are valid reasons to believe that this wording does does not reflect the true meaning of the provision. The question arises as to whether this interpretive rule should also apply in the context of dealers’ reporting obligations. Admittedly, from a systematic perspective, it is difficult to reconcile the fact that dealers’ due diligence obligations apply only to trading transactions exceeding 100,000 francs (Art. 8 (a)(1) AMLA), whereas the reporting obligation would apply to every transaction—especially since the triggering reasonable suspicions must, in principle, be based on additional inquiries conducted in accordance with the due diligence obligation (see Art. 20( 1 in conjunction with Art. 19 AML Ordinance; see Art. 8a(2) AMLA and Art. 9(1sexies) New AMLA). This is, in fact, why MROS proposes applying the 100,000-franc threshold to Art. 9(1bis) AMLA. However, it should not be forgotten that these are two different mechanisms: the due diligence obligation is subject to a de minimis threshold—admittedly a very high one—which is based on a compromise between, in short, the fight against money laundering and economic freedom. By contrast, the reporting obligation applies only when there are indications suggesting that the means of payment are linked to certain offenses and thus require further clarification. Consequently, and particularly in light of the ratio legis—which is to identify acts of money laundering, prosecute offenses, and ultimately confiscate illicit assets—it is reasonable—when there is indeed evidence, even in connection with transactions below 100,000 francs—to require the merchant to seek further clarification and, if such clarification fails to dispel the doubts, to file a report. The risk of money laundering also exists below this threshold. In any case, uncertainty remains, and it would be desirable for the legislature to quickly clarify the substantive scope of this obligation. Indeed, the preparatory works and subsequent official documents do not make it possible to discern a clear intent on the part of the legislature. De lege ferenda, it would be appropriate to establish a minimum threshold for dealers’ reporting obligations as well, if only for practical reasons.
2. Subject of the Suspicion: Currency Used in a Trading Transaction
154 The suspicion triggering the reporting obligation of merchants concerns “cash used in a commercial transaction.”
155 This wording—which is relatively clear, particularly when read in conjunction with Art. 2(1)(b) of the Anti-Money Laundering Act (AMLA)—nevertheless gives rise to two observations: first, the term “cash” refers to physical currency, regardless of the currency, as opposed to payments by bank transfer or card. The defining characteristic of cash is that its transfer generally leaves no paper trail, which increases the risk of money laundering. Although this objective might argue for extending the term to other means of payment, such as cryptocurrencies or precious metals, the wording of the provision hardly allows for this. On the other hand, cash must constitute the consideration that the merchant receives in connection with the sale of movable or immovable property (see Art. 15 OBA). Consequently, payment in exchange for services does not fall within the scope of Art. 9(1)bis LBA.
3. Nature of the Suspicion: Link to Certain Crimes or Offenses
156 The merchant’s suspicion that triggers the reporting obligation must relate to the existence of a link between the cash and certain crimes or offenses—in simple terms, the illicit nature of the cash used in the transaction. The alternative conditions listed in Article 9(1bis)(a) through (d) of the Anti-Money Laundering Act (AMLA) correspond word for word to those in Article 9(1)(a) of the AMLA. These include funds related to participation in or support for a criminal or terrorist organization or to money laundering; funds derived from a felony or a qualified tax offense; funds subject to the control of a criminal or terrorist organization; and, finally, funds used to finance terrorism (see supra N. 79 et seq.). Art. 20 of the Anti-Money Laundering Ordinance (OBA) groups these various alternative scenarios under the term “criminal act.” However, this term does not accurately reflect the law and cannot have any independent scope; in any event, it cannot either broaden or narrow the grounds for reporting. Art. 20(2) of the OBA further specifies that a report must also be made when the merchant cannot identify the specific offense (“criminal act”) from which the cash payments originate. Nor does this provision appear to have independent legal effect, since it is already established that a suspicion need not relate to a specific crime. The fact that the merchant is expected to specify the offense they suspect in support of their report does not does not change this. Ultimately, the provision in Art. 20(2) OBA does not relieve the merchant of its obligations to investigate, nor does it lower the relevant threshold for suspicion.
157 Despite all the similarities between the reporting obligations of financial intermediaries and merchants, there are nevertheless certain differences. On the one hand, merchants are not required to report in the event of a break in negotiations or a match with a terrorist list (situations covered by Art. 9(1)(b) and (c) of the Anti-Money Laundering Act (AMLA)). On the other hand, there are certain contextual differences related to the transactional nature of the trading operation. Thus, the question is not whether cash within the meaning of Art. 9(1bis)(c) of the AMLA remains under the control of a criminal or terrorist organization after the transaction, but only whether that was the case prior to the transaction. Otherwise, the provision would be rendered meaningless, since it is the dealer who then exercises control over the funds. The scope of Art. 9(1bis)(d) of the Anti-Money Laundering Act (AMLA), which was adopted retroactively in response to a FATF assessment, is less clear; for while the cash is intended to compensate the dealer, it does not, in principle, not for the financing of terrorism. To give effect to this provision, it would have to be interpreted to mean that suspicions regarding the financing of terrorism may relate to the transaction in general; however, this appears to be contrary to the letter of the law.
4. Threshold for Suspicion and Triggering Event: Knowledge or Reasonable Suspicion
158 The reporting obligation is triggered if the merchant knows or suspects, based on reasonable suspicion, that the cash used in a transaction is linked to any of the offenses listed in paragraphs 1 through 4 above. In this regard, reference may be made to the discussion regarding Art. 9(1)(a) of the Anti-Money Laundering Act (see supra, note 99 et seq.).
159 With regard to merchants, the concept of reasonable suspicion is further defined by Art. 20(1) OBA. This provision states that “[r]easonable suspicion exists, triggering a reporting obligation within the meaning of Art. 9( 1bis of the AMLA when the suspicions are based on a concrete indication or on several clues suggesting that the cash payments originate from a criminal act and that the additional clarifications referred to in Art. 19 [AML Ordinance] do not dispel them .” This wording is modeled on the definition contained in Art. 9, para. 1quater of the Anti-Money Laundering Act (AMLA) applicable to financial intermediaries. It has already been noted that the generic term “criminal act” in this legal definition is not consistent with Art. 9, para. 1bis of the AMLA (see supra N. 156).
160 As part of the revision of the Anti-Money Laundering Act (AMLA) adopted in September 2025, the federal legislature has, moreover, planned to move the legal definition of “reasonable suspicion” applicable to dealers into the Act (see Art. 9, para. 1sexies, new AMLA).
161 Under both current and new law, the existence of reasonable suspicion presupposes two stages (see supra N. 101 et seq.): first, there must be indications suggesting that the cash payments meet one of the conditions set forth in Art. 9, para. 1bis, subpar. a through d of the Anti-Money Laundering Act (AMLA). Such indications exist, pursuant to Art. 19(2) of the Anti-Money Laundering Ordinance (OBA), in particular when the person pays with banknotes of low face value, the transactions involve readily marketable goods, or the person provides insufficient or even false information. When a merchant is faced with such indications, they are required to conduct further inquiries regarding the context and purpose of the transaction. However, the existence of an indication does not mean that the merchant must immediately notify MROS. A report must be filed only when the additional clarifications do not dispel the initial suspicion.
C. Consequence: Reporting Obligation and Parallel Obligations
162 When the conditions of one of the scenarios set forth in Art. 9(1)bis(a) through (d) of the Anti-Money Laundering Act (AMLA) are met, the business operator must immediately file a report with MROS—just as a financial intermediary is required to do under Art. 9(1) of the AMLA (see supra N. 149). The procedures for this report (see infra, Chapter VI), its effects—particularly with regard to the trader’s parallel obligations (see below Chapter VII), as well as the consequences of non-compliance (see below Chapter VIII).
V. Reporting Obligations of Advisors (Art. 9 para. 1ter nAMLA)
A. Applicable Parties: Advisors
163 In September 2025, the Federal Parliament decided to extend the reporting obligation to the new category of advisors. The relevant provisions will take effect on October 1, 2026 (see supra N. 18). The term “advisor” refers to natural or legal persons who, in a professional capacity, participate on behalf of third parties in financial transactions—including the organization of funds—in connection with certain specifically listed legal transactions (notably the purchase or sale of real estate, the creation, management, or administration of non-operational legal entities, the organization of contributions to or distributions from such an entity, as well as the sale or purchase of entities through non-operational structures), as well as service providers who make available an address or premises serving as a domicile or registered office (Art. 2(1)(c) in conjunction with paras. 3bis and 3ter of the new AMLA). The term also covers employees who, on the basis of a public-law relationship, serve as public officials and who, in that capacity, participate in financial transactions, including the organization of funds in connection with the aforementioned legal transactions (Art. 2(1)(c) in conjunction with Art. 3quater nLBA). The nOBA contains several useful clarifications regarding the interpretation of the concept of “advisor” as defined by the nLBA (Art. 12d et seq. nOBA). In particular, it sets the thresholds above which advisory services are deemed to be provided on a professional basis (Art. 12f nOBA).
B. Conditions
164 The conditions triggering the reporting obligation for advisors are modeled on those applicable to financial intermediaries, with Art. 9(1)ter(a) through (c) of the nLBA reproducing Art. 9(1) of the LBA almost verbatim. Thus, the advisor must file a report as soon as he knows or suspects, based on reasonable grounds, that the assets involved in the transaction or the provision of services that he is preparing or executing are related to participation in or support of a criminal or terrorist organization or to money laundering; that they derive from a crime or a serious tax offense; that they are under the control of a criminal or terrorist organization, or that they are used to finance terrorism (Art. 9(1ter)(a)(1)–(4) nLBA). The obligation also applies when the advisor terminates negotiations due to such suspicions (Art. 9(1ter)(b) nLBA), as well as when the advisor determines, based on the in-depth due diligence conducted in cases of increased risk, a match between data relating to a listed person or organization within the meaning of the counterterrorism measures and that of a client, beneficial owner, or signatory (Art. 9, para. 1ter, subpar. c, nLBA). In principle, the reporting obligation for advisors is interpreted analogously to Art. 9, para. 1 and 1bis of the Anti-Money Laundering Act (AMLA), which apply to financial intermediaries and dealers; the relevant case law is therefore applicable mutatis mutandis (see supra N. 79 et seq.).
165 The concept of “reasonable suspicion” is the same as for financial intermediaries, since Art. 9 para. 1quater of the Anti-Money Laundering Act (or Art. 9 para. 1quinquies of the new Anti-Money Laundering Act) is expressly applicable by virtue of the reference in Art. 9(1sexies) of the new Anti-Money Laundering Act. The concept thus presupposes one or more indicators justifying the suspicion that cannot be dispelled by further clarification (see supra N. 101 et seq.).
C. Consequence: Reporting Obligation and Parallel Obligations
166 When the conditions for the reporting obligation under Art. 9(1ter)(a) through (d) of the New Anti-Money Laundering Act (nLBA) are met, the advisor must immediately file a report with MROS—just as a financial intermediary must under Art. 9(1) of the Anti-Money Laundering Act (see supra N. 149).
VI. Reporting Procedures
A. Responsibilities and Obligations Within the Financial Intermediary, Dealer, or Advisor
167 The reporting obligation generally rests with the financial intermediary, dealer, and advisor, as defined (or to be defined) in Art. 2 of the Anti-Money Laundering Act (AMLA), whether they are natural or legal persons.
168 Within a company, the reporting obligation rests more specifically with the persons designated for this function by law or by internal guidelines.
169 With regard to designation by law, this concept should be understood as a reference to the law in the substantive sense, including, in particular, the ordinances on money laundering.
170 For financial intermediaries subject to the OBA -FINMA, the ordinance provides that the highest level of management decides whether to make reports pursuant to Art. 9 AMLA (or pursuant to Art. 305ter, para. 2, of the Swiss Criminal Code), but that it may delegate this task to one or more of its members who do not have direct responsibility for the business relationship, to the specialized anti-money laundering unit, or to a largely independent unit (Art. 25a AMLA-FINMA). Before addressing the group of individuals to whom decision-making authority regarding reporting may be delegated, a general observation regarding this provision is in order: its purpose, in addition to assigning reporting authority to a high level of management, is toavoid conflicts of interest when deciding whether or not to report suspicions, such as those that may arise, for example, when a member of management personally manages client relationships subject to reporting requirements. This is an important and legitimate concern, which raises the question of whether measures to prevent conflicts of interest should also be taken at the management level. However, such an obligation cannot be directly inferred from Art. 25a OBA-FINMA, contrary to what some authors assert.
171 With regard to those to whom authority to make decisions regarding reporting has been delegated, Art. 25a OBA-FINMA provides, as mentioned above, that the delegation may be made to one or more members of management who do who are not directly responsible for the business relationship, or to the specialized anti-money laundering unit pursuant to Articles 24 and 25 of the OBA-FINMA. Finally, the delegation may also be made to a largely independent unit, which presupposes that the majority of its members do not engage in profit-generating activities. It may also involve a single individual; in practice, this is generally referred to as the Money Laundering Reporting Officer (“MLRO”), a role often filled by the Head of Compliance or the General Counsel. It is even conceivable to interpret “independent unit” as referring to external third parties.
172 Furthermore, once the decision to file a report has been made, to delegate the execution of the report to a lower-ranking employee or to an external third party who is properly trained and supervised.
173 The precise allocation of responsibilities under Art. 25a OBA-FINMA, in particular the delegation of decision-making authority and the execution of a disclosure, must be set forth in the financial intermediary’s internal guidelines (see Art. 26(2)(g) OBA -FINMA). The principles set forth below apply mutatis mutandis (see infra N. 175).
174 For the sake of completeness, it should also be noted that Art. 49 and Art. 50(2)(g) of the OBA-OFDF contain equivalent rules applicable to trading in bank precious metals, while theOBA -FDJP on large-scale gaming operators merely refers to internal guidelines (see Art. 24( 2(g) OBA-DFJP). The OBA-CFMJ does not explicitly address internal competencies.
175 As mentioned above, competencies regarding the reporting obligation may also arise from internal guidelines or regulations, which is, in fact, very common in practice. Generally speaking, the criteria on which such regulations must be based are as follows: the absolute priority is strict compliance with legal requirements, that is, ensuring that reports are submitted to MROS in a complete and timely manner as soon as the conditions are met. In other words, the regulations must ensure the quality and speed not only of the decision to report but also of the execution of the report. With regard to decision-making, the internal regulations must, in accordance with Art. 25a OBA-FINMA, prevent conflicts of interest, particularly when a person called upon to decide on the appropriateness of a report is involved in the business relationship in question. Furthermore, while collegial decision-making may a priori offer a better guarantee of legal compliance, when the composition of the collegial body is appropriate and the required expertise is present, it inherently carries a risk of delay, all the more so given the applicable quorum or voting rules. Furthermore, members of the collegial body may rely on one another and consequently feel less personally invested in the matter of reporting to MROS, sometimes underestimating the responsibility that may be involved (see below N. 176 et seq.). Conversely, a decision made by a single person specifically designated for this purpose within the company promotes speed but is truly effective only if independence and expertise are ensured. In the latter case in particular, care must be taken to ensure that the decision-maker holds an appropriate position within the company’s hierarchy, so as to be able to resist attempts at pressure or obstruction.
176 The issue of decision-making authority regarding reporting within a company subject to the AMLA is central, particularly from a criminal law perspective. According to a standard recitation of the Federal Criminal Court, the circle of potential perpetrators of a violation of Art. 37 of the Anti-Money Laundering Act (AMLA) include, among others, the person responsible for making the report in accordance with the institution’s internal regulations, the external person appointed for this purpose, the bodies responsible for establishing rules governing the training and supervision of the department responsible for reporting, as well as the bodies and employees tasked with training that department. This group is very broad and is often criticized in legal scholarship for its abstract nature.
177 As mentioned above, the general rule is that the reporting obligation rests with the persons designated for this function by law or by internal regulations. From the perspective of potential criminal liability, it is irrelevant that the designated responsible persons must, in accordance with internal regulations, involve other bodies or functions in an advisory capacity before deciding to file a report with MROS. Furthermore, it has already been ruled that a customer advisor who is aware of circumstances requiring a report but who, contrary to the obligations set forth in internal regulations, fails to report them to the person responsible for deciding whether to file a report with MROS, is also subject to criminal liability under Article 37 of the Anti-Money Laundering Act (AMLA). According to the Criminal Division of the Federal Criminal Court, the same applies to employees or bodies responsible for preventing and combating money laundering, even if, under the internal division of responsibilities, they are not themselves responsible for reporting to MROS. Finally, when, according to internal guidelines, decision-making authority regarding reporting does not rest with a single person (typically the MLRO) but lies with a collegial body, each individual member of such a body assumes the role of a guarantor, which entails an independent obligation to work toward making a report, if necessary by proposing that the matter be put to a vote within the body. Therefore, in the event of a delayed or omitted report, the individual member may be subject to criminal prosecution under Art. 37 of the Anti-Money Laundering Act (AMLA).
B. Recipient of the Report
178 It follows from Art. 9 of the Anti-Money Laundering Act (AMLA) that the report must be addressed to the MROS (Money Laundering Reporting Office Switzerland), c’ that is, the Money Laundering Reporting Office within the meaning of Art. 23 AMLA. The MROS plays a pivotal role between those subject to the reporting obligation and the criminal prosecution authorities: the MROS verifies and analyzes the information reported to it, requests additional information as needed, and immediately refers the case to the competent criminal prosecution authority if there are reasonable grounds for suspicion (see Art. 23, paras. 2 and 4, AMLA; see infra N. 195 et seq.). Thus, the tasks assigned to MROS as the national financial intelligence unit within the anti-money laundering system are designed to prevent criminal prosecution authorities from being overwhelmed by reports lacking sufficient grounds, to ensure specialized screening and preliminary review in order to identify genuinely suspicious cases, as well as to highlight connections between different pieces of information that would be overlooked in a decentralized process, and to gain an overview of money laundering methods and trends, thereby providing high-quality information to financial intermediaries, supervisory bodies, and law enforcement authorities.
179 The obligation to report within the meaning of Art. 9 AMLA is thus not fulfilled when MROS is “bypassed” and suspicions are reported directly and exclusively to law enforcement authorities, the self-regulatory body, or foreign authorities. Such practices also entail concrete criminal risks, particularly in connection with the violation of banking secrecy (Art. 47 BA) or, potentially, in cases involving foreign elements that could justify the jurisdiction of foreign criminal authorities, offenses against state sovereignty (Art. 271 and 273 of the Swiss Criminal Code, in particular).
180 Furthermore, MROS can only accept and process reports of suspicion if they fall within its jurisdiction due to the principle of specialty. Thus, MROS is not able to accept reports from natural or legal persons not subject to the Anti-Money Laundering Act (AMLA) (or the Proceeds of Crime Act), such as private individuals. The same applies to dealers regarding payments other than in cash. The latter are required to report their suspicions directly to the criminal prosecution authorities.
C. Form and Content of the Report
181 With regard to form, Art. 3a(3) of the OBCBA provides that reports to MROS must be submitted either through the goAML information system, or via the form provided by MROS, available on its website. GoAML is an electronic information system developed by the UN and implemented in 2020 by MROS, which enables the digital submission of suspicious activity reports via a secure portal, electronic transmission to the competent authorities, and the standardization of data formats. Although the OBCBA does not (yet) require the use of the goAML system, Fedpol has been encouraging its use for several years. In this spirit, the Federal Parliament decided, as part of the AMLA revision enacted in September 2025, to introduce Art. 23(7) of the new AMLA, according to which the exchange of information with MROS will henceforth take place exclusively via goAML. The option to submit a report on paper will therefore be eliminated as of October 1, 2026, the date on which the AMLA revision takes effect (see supra N. 18).
182 The content of reports to MROS is defined in detail in Art. 3(1) and (2) of the Anti-Money Laundering Ordinance (OBCBA), depending on the submitter (see also Art. 3a(4) OBCBA). In the case of financial intermediaries, the report must state the identity of the submitter and provide a means of direct contact with the responsible person, as well as the identification of the competent supervisory authority. It must also include the client’s identification data (within the meaning Article 3 of the Anti-Money Laundering Act (AMLA)) and of the beneficial owner (as defined in Article 4 of the AMLA), the identification of other persons authorized to sign or represent the entity, a list of the assets in question (including the current account balance), and a precise description of the business relationship, its purpose, and its objective, along with references to account opening. Above all, the report must set forth as precisely as possible the suspicions underlying it and document these with account statements, supporting documents detailing the suspicious transactions, any links to other business relationships, as well as the results of the internal investigations conducted in accordance with Art. 6 of the Anti-Money Laundering Act (AMLA).
183 With regard to the level of detail, the report must be as comprehensive as possible to enable MROS to conduct the analysis required under Art. 23(2) and (4) of the AMLA. Furthermore, a financial intermediary or dealer who submits an incomplete report risks not being released from its reporting obligation and, consequently, may be held criminally liable under Art. 37 of the AMLA (see infra N. 211 et seq.). However, given in particular the MROS’s authority under Art. 11a of the Anti-Money Laundering Act (AMLA) to obtain additional information from the financial intermediary that submitted the report, restraint should be exercised before concluding that an incomplete report is deemed not to have been filed. This should only be the case if the report was, clearly not been made with due diligence or if the information transmitted to MROS is so incomplete that MROS is absolutely unable to fulfill its legal mandate (see infra N. 195 et seq.).
184 For reports from dealers, a similar core set of information is required, though adapted to their status (see Art. 3(2) OBCBA).
185 In principle, the same will apply to advisors, in accordance with the proposed amendments to the OBCBA (see Art. 3(2bis) and (2ter) nOBCBA) set forth in the annex to the nOTPM.
186 While the OBCBA specifies what information must be included in a report, the names of the intermediary’s financial intermediary or dealer handling the case need not be mentioned, provided that MROS and the criminal prosecution authority retain the ability to contact them promptly (Art. 9, para. 1ter, AMLA). This provision was introduced by Parliament to protect employees from potential retaliatory measures by the person who is the subject of the report.
187 In its report on so-called “negative typologies” published in 2025, MROS laments a decline in the quality of certain reports, characterized by cases that are insufficiently substantiated, poorly documented, or of no real relevance to the fight against money laundering. MROS observes that, in many cases, the facts are only briefly clarified, or it remains unclear whether the additional clarifications required by Art. 6 of the Anti-Money Laundering Act (AMLA) have been provided. This trend is accompanied by a phenomenon known as “defensive reporting” (defensive reporting); financial intermediaries are submitting reports prematurely to protect themselves against criminal or administrative liability, rather than reporting on the basis of well-founded suspicions following further clarification. As justified as these observations may be, and as important as the quality of reports is to the fight against money laundering , the observed behavior of entities subject to the AMLA is is nonetheless understandable, as they face substantial criminal and/or prudential sanctions in the event of failure to report or delayed reporting. Added to this is the fact that the threshold of suspicion triggering the reporting obligation has been lowered, first by case law and then by the legislature (see Art. 9(1)quater AMLA). In this context, it is hardly surprising that entities subject to the AMLA may tend to file reports hastily.
D. Timing of the Report
188 Art. 9, para. 1 and para. 1bis of the AMLA provides that the report must be filed “immediately,” without further specification. It is useful to distinguish between two aspects of this concept of immediacy, namely, on the one hand, the point in time at which the reporting obligation is triggered and, on the other hand, the time limit for preparing and submitting the report to MROS.
189 With regard to the point in time that triggers the obligation to report, this has already been addressed above in connection with the various scenarios set forth in Art. 9 AMLA. With the exception of the case provided for in Art. 9(1)(b) of the Anti-Money Laundering Act (AMLA), where the obligation is triggered by the termination of negotiations to establish a business relationship due to reasonable suspicion (see supra, N. 131), the reporting obligation generally arises as soon as the threshold of “reasonable suspicion” is reached (see supra, N. 99, 144, and 158). It should be noted that the legal definition of “reasonable suspicion” requires not only the presence of evidence suggesting a link to a criminal offense but also that the additional inquiries conducted have failed to dispel the suspicion (Art. 9(1)quater AMLA; see supra N. 104). Consequently, the reporting obligation does not arise as soon as the first doubts appear, but only after clarifications have been carried out to the extent that is reasonable and necessary.
190 In principle, persons subject to the AMLA must immediately undertake additional clarifications pursuant to Art. 6(2) AMLA and complete them as quickly as possible, as soon as they have a concrete indication or several clues suggesting that the criteria set forth in Art. 9 AMLA might be met (see Art. 9(1quater) AMLA). The scope of the inquiries depends on the specific circumstances. As explained above, the financial intermediary must act with due diligence and, at a minimum, conduct the inquiries necessary to dispel the initial suspicion. Once these clarifications have been carried out, if the suspicion(s) cannot be dispelled, a report must be filed immediately (see supra N. 106 et seq.).
191 According to case law, a delay in the clarification process is not a valid reason to postpone filing a report. In practice, the Federal Department of Finance (FDF) generally holds that the financial intermediary has a 60-day period to conduct clarifications—that is, to fully dispel the suspicions that have arisen—failing which it must proceed with the report. This practice stems from an earlier decision by the Swiss Federal Banking Commission (SFBC), which had held that clarifying unusual transactions some 60 days after their by a computerized transaction monitoring system was excessive. The SFBC’s decision therefore does not have the scope attributed to it by the FDF. Furthermore, this decision contains no explicit rationale justifying the choice of a 60-day deadline. It should also be noted that this time frame was not incorporated into either the AMLA or the OBA-FINMA. In any event, the 60-day deadline can, in our view, only be understood as an absolute limit on the time available to conduct in-depth investigations. Under no circumstances should it be interpreted as a “standard” or automatically applicable deadline.
192 It is also worth noting that when a financial intermediary is aware of the criminal origin of the assets or has a well-founded suspicion from the outset (for example, upon learning from a reliable source that the client is the subject of criminal proceedings related to the assets in question), the reporting obligation must (exceptionally) be fulfilled immediately, without first conducting further clarifications, provided that the available information ensures the quality of the report (see supra N. 110 et seq.).
193 As soon as the reporting obligation is triggered, the report must be filed immediately. What this means in practice depends on the specific case. Admittedly, case law suggests—not as a general rule, but in specific cases—that a person subject to the AMLA may be required to file a report on the very day the suspicion became well-founded within the meaning of Art. 9(1quater) of the Anti-Money Laundering Act (AMLA). However, this should apply only in exceptional cases, since from a purely practical standpoint, sufficient time must be allowed to decide on the principle of the report and then to prepare and submit the report to MROS. If a well-founded suspicion exists, but it is reported to MROS only incompletely or imprecisely due to a lack of time, then all additional clarifications will have been in vain and the objective of the AMLA will not have been achieved. It should be noted that, according to MROS, “[r]eports of suspicion […] must meet certain substantive standards so that MROS can process them effectively. Incomplete or unclear facts complicate or even prevent analysis. Such reports of suspicion clog the reporting system and tie up unnecessary resources at MROS. They have a detrimental effect on the efficiency of report processing and weaken the anti-money laundering framework as a whole ".
194 Consequently, the concept of immediacy must be interpreted teleologically, meaning that the person subject to the AMLA has, between the time a well-founded suspicion arises and the time the report is submitted to MROS, the time necessary—within the framework of sound internal organization and diligent conduct—to decide to file a report, to prepare it thoroughly, including all supporting documents required by law, and then to transmit it to MROS via a secure and rapid channel . As a general rule, a few days will suffice, given that the person subject to the AMLA can rely directly on the results of the additional clarifications carried out and that the goAML information system allows for immediate electronic transmission.
VII. Effects of the Report and Related Obligations
A. MROS Procedure
195 Once MROS has received a suspicious activity report, it verifies and analyzes the information provided, requests additional information as needed, and immediately refers the case to the competent criminal prosecution authority if there are reasonable grounds for suspicion (see Art. 23, paras. 2 and 4, AMLA).
196 During its analysis phase analysis phase, MROS reviews the reports and conducts further investigations (see Art. 1, para. 2, letters a and b, OBCBA). To carry out its duties, it may obtain information pursuant to the Federal Act on Central Criminal Police Offices (Art. 6 OBCBA). It is also authorized to request from authorities, agencies, supervisory bodies, and self-regulatory organizations any relevant information, in particular to verify the existence of criminal or administrative proceedings, police records regarding individuals or companies, residency and business activities in Switzerland, as well as whether the financial intermediary is effectively subject to the relevant oversight (Art. 7 OBCBA). At the same time, pursuant to Art. 11a of the Anti-Money Laundering Act (LBA), the financial intermediary that filed the report and, where applicable, other intermediaries involved in the transaction or business relationship must provide MROS, upon request and within the timeframe it specifies, with all available information necessary to assess the suspicions.
197 Upon completion of the analysis of the information, MROS immediately reports the case to the competent criminal prosecution authority when there are reasonable grounds to suspect that an offense within the meaning of Articles 260ter, 305bis, or 305ter, paragraph 1, of the Swiss Criminal Code (CP) has been committed, or that assets derive from a crime or an aggravated tax offense, are under the control of a criminal or terrorist organization, or are used to finance terrorism (Art. 23(4) of the Anti-Money Laundering Act (AMLA)). It is the responsibility of MROS not only to decide whether information is to be forwarded, but also which information (Art. 1(2)(c) of the OBCBA). The relevant information and MROS’s assessment thereof are forwarded to the public prosecutors’ offices in the form of electronic reports. These reports must not contain any information regarding the author of the report or the person who provided the information (Art. 8(1) OBCBA; see also Art. 9(1ter) Anti-Money Laundering Act). At the same time, MROS informs the financial intermediary (or advisor) that it is forwarding the information reported pursuant to Art. 9(1)(a) Anti-Money Laundering Act to a criminal prosecution authority (see Art. 23(5) of the new Anti-Money Laundering Act and Art. 9(1) of the OBCBA).
198 Furthermore, when MROS determines that a financial intermediary (or advisor) has failed to comply with its obligations in cases of suspected money laundering, it may spontaneously notify the competent supervisory authority, the competent supervisory body or the self-regulatory body (Art. 10(2) of the new OBCBA). In theory, it would even be conceivable for MROS to file a criminal complaint with the FDF on suspicion of a violation of Art. 37 AMLA (see Art. 301(1) CCP). However, we are not aware of any such instances having occurred.
B. Parallel Obligations
199 The AMLA and its ordinances contain various obligations parallel to the obligation to report, the primary purpose of which is to prevent “tipping off” and to preserve assets for possible subsequent forfeiture. Most of these obligations apply to financial intermediaries and take effect once the report has been filed with MROS.
200 Under Art. 10a, paras. 1 and 5, of the Anti-Money Laundering Act (AMLA), financial intermediaries—and dealers—are prohibited from from informing the persons concerned and third parties that they have filed a report. The Anti-Money Laundering Act (AMLA) provides for several exceptions to this rule for financial intermediaries, particularly regarding reporting to their supervisory authorities, other financial intermediaries (if necessary to comply with obligations under the AMLA), and their parent company abroad (under the conditions set forth in Art. 4quinquies LB; see Art. 10a, paras. 1–3bis LBA). Furthermore, the prohibition on disclosure does not apply when the purpose is to safeguard one’s own interests in the context of civil, criminal, or administrative proceedings (Art. 10a, para. 6 LBA).
201 The financial intermediary is also subject to the prohibition on terminating the business relationship when the conditions for reporting are met (Art. 12a, para. 1, OBA). This prohibition therefore applies even before the report is submitted to MROS, during the (short) period of preparation for the report. Furthermore, it follows from the wording of Art. 12a, para. 1, OBA (“when the conditions for a report are met”) that the financial intermediary may not terminate a business relationship for the purpose of evading or delaying a report to MROS. In other words, the prohibition applies even if the financial intermediary refrains from reporting or delays in doing so.
202 That said, if MROS does not notify the financial intermediary that it is forwarding the reported information to a criminal prosecution authority within 40 business days following a report within the meaning of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA), the financial intermediary may terminate the business relationship (Art. 9b(1) AMLA). This also applies in the additional cases specified in Art. 12b(1) AMLO. If the financial intermediary terminates the business relationship after this deadline, this fact, along with the date on which the termination occurred, must be reported to MROS (Art. 9b(3) AMLA; Art. 12b, para. 3, OBA). Furthermore, the financial intermediary may authorize the withdrawal of significant assets only in a form that allows law enforcement authorities to trace them (Art. 9b, para. 2, AMLA; see also Art. 12a, para. 2, let. b, and 12b, para. 2, OBA). The prohibition on disclosure also continues to apply even after the business relationship has been terminated (Art. 9b(4) AMLA).
203 It should be noted that Art. 12a(1) AMRO does not preclude the business relationship from being terminated at the client’s initiative. This follows a contrario from the wording “ on his own initiative” in Art. 12a(1) OBA and from the distinction the law makes between the prohibition on terminating the business relationship and the obligation to freeze funds.
204 During the analysis conducted by MROS, the financial intermediary must continue to execute orders from clients relating to assets reported pursuant to Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) (see Art. 9a(1) of the AMLA) . The purpose of this provision is to prevent the client from being indirectly alerted that a report has been filed with MROS. However, the objective of discretion sought by this provision is not absolute, as the financial intermediary may execute client orders involving significant assets only in a manner that allows law enforcement authorities to trace them (Art. 9a, para. 2, AMLA). If this condition is not met, the financial intermediary will have no choice but to refuse to execute the client’s instructions, which could alert the client to the possibility that a report has been filed with MROS.
205 From the perspective of supervisory law, a financial intermediary subject to the OBA-FINMA must also notify FINMA or the supervisory authority of any reports filed when they concern business relationships involving significant assets. In particular, the financial intermediary must provide such notification when there is reason to believe, given the circumstances, that the matter giving rise to the report will have consequences for the reputation of the financial intermediary or the financial center (Art. 22a, para. 1, OBA-FINMA). It should be noted that certain self-regulatory organizations (SROs) require their members to inform them immediately of any report filed.
206 A key rule for ensuring the eventual forfeiture of assets linked to money laundering is the freezing of assets. Indeed, as soon as MROS notifies the financial intermediary that it is forwarding the information to a criminal prosecution authority, the financial intermediary must freeze the assets entrusted to it that are linked to the information reported pursuant to pursuant to Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA) (Art. 10(1) AMLA). By contrast, assets entrusted to the financial intermediary that are linked to information reported pursuant to Art. 9(1)(c) of the AMLA—that that is, a match with a terrorist list, must be frozen immediately upon notification to MROS (Art. 10(1)bis AMLA). The freeze on the assets must remain in effect until a decision is received from the competent criminal prosecution authority, but for no more than five business days from the time MROS notifies the financial intermediary that it has forwarded the information to a criminal prosecution authority in the case of Art. 9(1)(a) of the Anti-Money Laundering Act (AMLA), or from the time the financial intermediary has informed MROS in the case of Art. 9(1)(c) of the AMLA (Art. 10(2) of the AMLA).
207 In addition, the sector-specific ordinances require persons subject to them to retain a copy of the reports filed (Art. 74(1)(f) OBA-FINMA; Art. 23( 1(f) OBA-DFJP; Art. 45(1)(f) OBA-OFDF; see Art. 21(2)(g) OBA-CFMJ).
208 It is also worth noting theobligation to provide additional information to MROS. On the one hand, Art. 11a( 1 of the Anti-Money Laundering Act (AMLA) provides that the financial intermediary that filed the report must provide MROS, upon request and within the timeframe set by MROS, with all available information necessary for the assessment of the suspicions. On the other hand, the question arises as to whether the financial intermediary (or any other person subject to the AMLA) is required to voluntarily submit new information to MROS without a prior request. In the absence of a clear legal basis basis, the answer must be in the negative. However, the financial intermediary is, in principle, free to send MROS information related to a report that has already been submitted. If the initial report has been processed by MROS and MROS has already informed the financial intermediary of its decision, MROS considers that any information or document submitted constitutes a new report, for which the financial intermediary must conduct an in-depth analysis and provide the usual attachments; a simple reference to the initial report is not sufficient. Conversely, if MROS has not yet completed its review of the initial report and the new information concerns exactly the same individuals and the same set of facts, MROS does not consider this to be MROS, this does not constitute a new report. MROS treats this information as a supplement to the initial report, in which case a simple reference to the latter is sufficient. Finally, if the new information does not concern the same facts or the same individuals, but is related to the initial report, it must be the subject of a new report; a reference to the previous report seems appropriate in this case.
C. Exclusion of Liability in the Case of Reports Made in Good Faith
209 A report to MROS fundamentally conflicts with the obligations of loyalty and confidentiality that a person subject to the Anti-Money Laundering Act (AMLA) owes to their client. Furthermore, even if the suspicions reported to MROS are later found to be unfounded, the report may require the client concerned to take costly steps and may cause the client losses, particularly due to financial transactions the client was unable to carry out or due to the inconvenience suffered as a result of the criminal proceedings initiated following the report. This raises the question of potential civil claims against the person subject subject to the Anti-Money Laundering Act (AMLA). To prevent these risks from influencing their decision regarding a potential report, Art. 11(1) AMLA provides for an exemption from criminal and civil liability. More specifically, according to Art. 11(1) AMLA, anyone who makes a report in good faith may not be prosecuted for breach of official secrecy, professional secrecy, or business secrecy, nor held liable for breach of contract.
VIII. Consequences of a Breach of the Reporting Obligation
210 A breach of the reporting obligation entails various consequences, both administrative and/or criminal.
211 From a theoretical perspective, three main scenarios may constitute a violation of Art. 9 of the Anti-Money Laundering Act (AMLA). First, if the report is not made at all, even though the required conditions are met. Second, a late report may also constitute a violation of Art. 9 of the Anti-Money Laundering Act (AMLA), bearing in mind that the report must be made immediately according to the wording of the provision. Third, Art. 9 AMLA is also violated in the event of a report that is (manifestly) incomplete or does not comply with the prescribed form. It has already been noted above that this scenario should be applied only with restraint (see supra N. 183) .
212 These three scenarios may first and foremost be subject to criminal penalties. Article 37 of the Anti-Money Laundering Act (AMLA) imposes a fine of up to 500,000 francs on anyone who intentionally violates the reporting obligation and a fine of 150,000 francs in the case of a negligent violation. This constitutes a in its purest form, which can only be committed by a person subject to Art. 9 of the Anti-Money Laundering Act (AMLA). Pursuant to Art. 6 DPA, criminal liability within a company lies with the natural persons who acted (para. 1) or with their superiors (para. 2) (see supra N. 167 et seq.). The company may be held liable under the subsidiary liability provisions of Art. 49 of the Financial Market Supervision Act (LFINMA).213 On the administrative or prudential level as well, several consequences may result from non-compliance with Art. 9 of the Anti-Money Laundering Act (AMLA). For example, FINMA may order the restoration of compliance with the law (Art. 31 of the FINMA Act) or issue a decision finding a serious violation, as well as carry out enforcement by substitution (Art. 32 FINMA Act). If FINMA finds a serious violation of supervisory law, it may prohibit the perpetrator from holding a management position in a regulated institution (Art. 33 FINMA Act; see Art. 9(2) AML-FINMA -FINMA), as a violation of anti-money laundering rules may call into question the guarantee of sound business practices required of the financial intermediary (Art. 9(1) AML-FINMA). FINMA may also prohibit the person from engaging in trading in financial instruments or providing client advisory services (Art. 33a FINMA Act). In addition, it may resort to naming and shaming (Art. 34 FINMA Act) and confiscate the proceeds acquired by a regulated entity or a person holding a management position who has seriously violated supervisory law (Art. 35 FINMA Act; see Art. 9(2) OBA-FINMA). Finally, it may revoke a regulated entity’s operating license, recognition, authorization, or registration if the entity no longer meets the required conditions or if it seriously violates supervisory law (Art. 37 FINMA Act).
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