Financial Institutions Ordinance (FinIO)
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Section 1 Subject Matter and Scope of Application
Art. 1 Subject matter
(Art. 1 and 72 FinIA) This Ordinance governs: a. the authorisation conditions for financial institutions; b. the duties of the financial institutions; c. the supervision of the financial institutions.
Art. 2 Scope of application
(Art. 2 FinIA) This Ordinance applies to financial institutions operating in or from Switzerland.
Art. 3 Business ties
(Art. 2 para. 2 let. a FinIA) Companies or units of a group are deemed to have business ties insofar as they provide financial services or services in the capacity of trustee for other companies or units of the same group.
Art. 4 Family ties
(Art. 2 para. 2 let. a FinIA) 1 The following persons are deemed to have family ties with one another: a. relatives by blood or by marriage in the direct line; b. relatives by blood or by marriage up to the fourth degree in the collateral line; c. spouses and registered partners; d. coheirs and legatees from succession until completion of the division of estate or allocation of the legacy; e. remaindermen and remainderwomen and residuary legatees in accordance with Article 488 of the Swiss Civil Code (CC); f. persons living in a permanent life partnership with a portfolio manager or trustee. 2 Family ties are deemed to exist insofar as portfolio managers manage assets or trustees manage in-house funds in favour of persons who have family ties with one another, if the portfolio managers or trustees are directly or indirectly controlled by: a. third parties who have family ties with these persons; b. a trust, a foundation or a similar legal construct set up by a person with family ties.
Para. 1 let. e — SR 210
Art. 5 Employee participation schemes
(Art. 2 para. 2 let. b FinIA) Employee participation schemes are deemed to be plans which: a. represent a direct or indirect investment in the company of the employer or in another company which by virtue of a majority of votes or by some other means is under uniform management with the company of the employer (group); and b. are directed at employees who at the time of the offer are not under notice.
Art. 6 Legally regulated mandates
(Art. 2 para. 2 let. d FinIA) Legally regulated mandates are in particular: a. an advance care directive in accordance with Articles 360–369 CC; b. a representative deputyship to manage assets in accordance with Article 395 CC; c. a general deputyship in accordance with Article 398 CC; d. an executorship in accordance with Articles 517 and 518 CC; e. an estate administration in accordance with Articles 554 and 555 CC; f. an official liquidation in accordance with Articles 593–596 CC; g. a representation of heirs in accordance with Article 602 paragraph 3 CC; h. a bankruptcy administration in accordance with Articles 237 paragraph 2 and Article 240 of the Federal Act of 11 April 1889 on Debt Enforcement and Bankruptcy (DEBA); i. an administrative receivership in accordance with Article 295 DEBA; j. enforcement tasks under an ordinary composition agreement in accordance with Article 314 paragraph 2 DEBA; k. an appointment as liquidator under a composition agreement with assignment of ass
let. a — SR 210 let. h — SR 281.1 let. l — SR 956.1 let. m — SR 952.0 let. m — SR 958.1 let. n — SR 951.31 let. n — SR 961.01
Art. 7 Exemption
(Art. 2 FinIA) Where there are legitimate grounds for so doing, the Swiss Financial Market Supervisory Authority (FINMA) may fully or partially exempt managers of collective assets from the provisions of the FinIA and the present Ordinance if: a. the protective purpose of the FinIA is not impaired; and b. the management of collective assets has been delegated to them solely by the following persons: 1. authorised parties in accordance with Article 2 paragraph 1 letters c and d as well as paragraph 2 letters f–i FinIA, 2. authorised parties in accordance with Article 13 paragraph 2 letters b–d CISA, or 3. foreign companies which with regard to organisation and investor rights are subject to rules that are equivalent to the provisions of the FinIA and the CISA.
let. b let. 2 — SR 951.31
Art. 8 Significant group companies
(Art. 4 para. 2 FinIA) The functions of a group company are significant with respect to the activities which require authorisation if they are necessary for the continuation of important business processes, in particular in the areas: a. liquidity management; b. treasury; c. risk management; d. master data administration and accounting; e. personnel; f. information technology; g. trading and settlement; h. legal and compliance.
Section 2 Common Provisions
Art. 9 Authorisation application and duty to obtain authorisation
(Art. 5 and 7 FinIA) 1 The financial institution shall submit an authorisation application to FINMA. The application shall contain all information and documents required to assess it, specifically information and documents on: a. the organisation, in particular on corporate governance and control as well as on risk management (Articles 9, 20, 21 and 33 FinIA); b. the place of management (Article 10 FinIA); c. the guarantee (Article 11 FinIA); d. tasks and the delegation of such tasks (Articles 14, 19, 26, 27, 34, 35 and 44 FinIA); e. minimum capital and collateral (Articles 22, 28, 36 and 45 FinIA); f. capital (Articles 23, 29, 37 and 46 FinIA); g. the ombudsman's office (Article 16 FinIA); h. the supervisory organisation and the audit firm (Articles 61–63 FinIA). 2 Insurance companies as defined in the ISA are exempt from the duty to obtain authorisation as a manager of collective assets. 3 Exemption from the duty to obtain authorisation as a trustee from FINMA can be granted to trust
Para. 2 — SR 961.01
Art. 10 Change in facts
(Art. 8 para. 2 FinIA) Changes of material significance for financial institutions in accordance with Article 8 paragraph 2 FinIA are in particular: a. changes in organisational and partnership documents; b. changes in the persons responsible for administration and management; c. changes in minimum capital and capital adequacy, in particular falling short of minimum requirements; d. facts which are likely to call into question the good reputation or the guarantee of irreproachable business conduct on the part of the financial institution or of the persons entrusted with management tasks as well as of owners of a qualified participation, specifically the initiation of criminal proceedings; e. facts which call into question prudent and sound business activity on the part of the financial institution owing to the influence of owners of a qualified participation.
Art. 11 Form for submission
(Art. 5, 7 and 8 FinIA) 1 FINMA may determine the form for submission, specifically for the following documents: a. applications for authorisation from financial institutions and necessary documents; b. reports of changes in accordance with Article 8 FinIA and necessary documents. 2 It may designate a third party as recipient of submitted documents.
Art. 12 Organisation
(Art. 9 FinIA) 1 Financial institutions must define their organisation in their organisational principles. 2 They must describe their area of business in factually and geographically precise terms in the principal documents. The business area and its geographical extent must be commensurate with the financial possibilities as well as with the operational organisation. 3 Financial institutions must have personnel in place who are appropriately and suitably qualified to perform their business activities. 4 Risk management must encompass all business activities and be organised in such a way that all the main risks can be identified, assessed, controlled and monitored.
Art. 13 Guarantee
(Art. 11 FinIA) 1 The application for authorisation for a new financial institution must contain in particular the following information and documentation on the persons responsible for administration and management in accordance with Article 11 paragraphs 1 and 2 FinIA as well as on the owners of a qualified participation in accordance with Article 11 paragraph 3 FinIA: a. natural persons: 1. details of nationality, place of residence, qualified participations in the financial institution or in other companies and pending court and administrative proceedings, 2. a curriculum vitae signed by the relevant person, 3. references, 4. a standard private extract from the VOSTRA information system of the Register of Criminal Records and an extract from the debt enforcement register or corresponding confirmation if the person is resident abroad; b. companies: 1. the articles of association, 2. an extract from the commercial register or a corresponding attestation, 3. a description of business
Para. 1 let. a let. 4 — Amended by Annex 10 No II 30 of the Criminal Records Register Ordinance of 19 Oct. 2022, in force since 23 Jan. 2023 (AS 2022 698).
Art. 14 Public offer of securities on the primary market
(Art. 12 FinIA) 1 The question of what constitutes a public offer is determined on the basis of Article 3 letters g and h of the Financial Services Act of 15 June 2018 (FinSA). 2 Offers to schemes and persons in accordance with Article 65 paragraphs 2 and 3 are not deemed public.
Para. 1 — SR 950.1
Art. 15 Delegation of tasks
(Art. 14 para. 1 FinIA) 1 Tasks in accordance with Article 14 paragraph 1 FinIA are deemed delegated if financial institutions appoint a service provider to independently and permanently perform in full or in part a material task, thereby changing the circumstances underlying the authorisation. 2 Material tasks are deemed to be: a. for portfolio managers and trustees: tasks in accordance with Article 19 FinIA; b. for managers of collective assets: tasks in accordance with Article 26 FinIA; c. for fund management companies: tasks in accordance with Article 32, Article 33 paragraph 4 and Article34 FinIA; d. for securities firms: tasks in accordance with Articles 41 and 44 FinIA.
Art. 16 Delegable tasks
(Art. 14 para. 1 FinIA) 1 Financial institutions may delegate to third parties only tasks in accordance with Article 14 paragraph 1 FinIA which do not need to be within the decision-making remit of the body responsible for management or for governance, supervision and control. 2 Delegation must not impair the appropriateness of the operational organisation. 3 The operational organisation is no longer deemed to be appropriate if a financial institution: a. does not have the necessary personnel resources and specialist knowledge to select, instruct and monitor the third party and manage the associated risks, or b. does not have the necessary rights to issue instructions to or control the third party.
Art. 17 Delegation of tasks: responsibility and procedures
(Art. 14 para. 1 FinIA) 1 The financial institutions remain responsible for the fulfilment of supervisory duties and when delegating tasks shall safeguard clients' interests. 2 They shall agree with the third party in writing or in another form demonstrable via text which tasks are to be delegated. The following in particular are to be laid down in the agreement: a. the authorities and responsibilities; b. any powers of sub-delegation; c. the third party's duty to render account; d. the financial institutions' rights of control. 3 Financial institutions shall lay down in their organisational principles the tasks delegated as well as details of the possibility of sub-delegation. 4 Delegation is to be defined such that the financial institution, its internal auditors, the audit firm, the supervisory organisation and FINMA can inspect and review the delegated task.
Art. 18 International business
(Art. 15 FinIA) 1 The notification which a financial institution is required to submit to FINMA before engaging in activities abroad must contain all the information and documents needed to assess such activities, specifically: a. a business plan describing in particular the nature of the planned transactions and the organisational structure; b. the name and address of the office abroad; c. the names of the persons responsible for administration and management; d. the auditing firm; e. the name and address of the supervisory authority in the foreign state in which the registered office or domicile is located. 2 Furthermore, the financial institution shall notify FINMA of: a. the discontinuation of business activities abroad; b. any material change in business activities abroad; c. a change in audit firm; d. a change in the supervisory authority in the foreign state in which the registered office or domicile is located.