Financial Market Infrastructure Act (FinMIA)
Inserted by No I 10 of the FA of 25 Sept. 2020 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 33, 399; BBl 2020 233).
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only, has no legal force and may not be relied on in legal proceedings.
Art. 73a Definitions
1 A DLT trading facility is a commercially operated institution for multilateral trading of DLT securities whose purpose is the simultaneous exchange of bids between several participants and the conclusion of contracts based on non-discretionary rules and which meets at least one of the following criteria: a. It admits participants in accordance with Article 73c paragraph 2 letter e. b. It holds DLT securities in central custody based on uniform rules and procedures. c. It clears and settles transactions in DLT securities based on uniform rules and procedures. 2 The criterion of a commercial basis is deemed satisfied by an independent economic activity pursued on a permanent, for-profit basis.
Art. 73b Applicability of certain requirements for trading venues
DLT trading facilities are subject to the following requirements for trading venues: a. self-regulation (Art. 27); b. organisation of trading (Art. 28); c. pre- and post-trade transparency (Art. 29); d. guarantee of orderly trading (Art. 30); e. supervision of trading (Art. 31); f. collaboration between trading supervisory bodies (Art. 32); g. suspension of trading (Art. 33 para. 2); h. appeal body (Art. 37).
Art. 73c Admission of participants and their duties
1 The following may be admitted as participants in a DLT trading facility: a. securities firms as defined in Article 41 of the FinIA; b. other parties supervised by FINMA in accordance with Article 3 of the FINMASA as well as parties supervised by a foreign authority, provided that the DLT trading facility ensures that they fulfil equivalent technical and operational conditions to securities firms; c. the SNB; d. the Bank for International Settlements; e. other natural persons and legal entities, provided that they declare that they are participating in their own name and for their own account. 2 Participants domiciled in Switzerland must provide FINMA with all information and documents that it requires to carry out its tasks. The DLT trading facility must ensure that foreign-domiciled participants provide the relevant information and documents if FINMA so requires. 3 The provisions on the record-keeping duty (Art. 38) and the reporting duty (Art. 39) of participants also apply to part
Para. 1 let. a — SR 954.1 Para. 1 let. b — SR 956.1
Art. 73d Admission of DLT securities and other assets
1 The DLT trading facility shall issue regulations on the admission of DLT securities to trading and to the other services it provides. In particular, it shall set out therein the requirements to be met by the DLT securities and the issuers or third parties in connection with the admission. The duty to publish a prospectus is governed exclusively by Articles 35–57 of the Financial Services Act of 15 June 2018. 2 A DLT trading facility that, in addition to DLT securities, admits other assets to trading or to its other services shall issue regulations on the admission of such assets. 3 The Federal Council may: a. require that DLT securities be admitted to DLT trading facilities only if they meet certain minimum requirements, in particular as regards their integrity and the availability of public information; b. specify which DLT securities and other assets must not be admitted to DLT trading facilities in order to protect financial market participants or the stability or integrity of the
Para. 1 — SR 950.1
Art. 73e Additional requirements
1 For DLT trading facilities that are open to participants under Article 73c paragraph 1 letter e, the Federal Council may set requirements for the protection of these participants in addition to the requirements under Articles 73b–73d. 2 For DLT trading facilities that provide central custody, clearing and settlement services, the Federal Council shall set requirements in addition to those under Articles 73a–73d, in particular with regard to: a. the central custody, clearing and settlement of DLT securities; b. collateral; c. capital adequacy; d. risk diversification; e. ancillary services; f. liquidity; g. procedure in the event of a participant's default; h. segregation. 3 The Federal Council shall base the requirements under paragraph 2 on the requirements for central securities depositories (Arts. 61–73). 4 Where necessary in order to take account of technology-specific risks, the Federal Council may authorise FINMA to draw up the requirements under paragraph 2. 5 The competence o
Art. 73f Easing of requirements for small DLT trading facilities
1 For reasons of proportionality and while taking into account the protective purpose of this Act, the Federal Council may ease the requirements for small DLT trading facilities under Articles 6–21, 27–33 and 37, in particular the requirements on: a. separation of the bodies responsible for business management from those responsible for overall management, supervision and control (Art. 8); b. the provision of ancillary services not subject to authorisation or approval by virtue of the financial market legislation (Art. 10); c. the independence of the self-regulatory organisation (Art. 27 para. 2) and of the appeal body (Art. 37 para. 1). 2 DLT trading facilities are deemed to be small if they pose a low risk in terms of the protection of financial market participants and the proper functioning and stability of the financial system, in particular because the number of participants, the trading volume, the volume of custody assets or the clearing and settlement volume is limited. The Fed
Chapter 5 Trade Repositories
Section 1 General Provisions
Art. 74 Definition
A trade repository is an entity which collects, manages and retains in a centralised manner the data on derivatives transactions reported to it in accordance with Article 104.
Art. 75 Data retention
The trade repository shall record the reported data and retain it for at least ten years after the contract was due.
Art. 76 Publication of data
1 The trade repository shall regularly publish the open positions, transaction volumes and values by derivatives category in aggregated and anonymised form on the basis of the reported data. 2 It may publish further data provided it is aggregated and anonymised.
Art. 77 Data access for Swiss authorities
1 The trade repository shall grant the following authorities free access to the data they require to perform their tasks: a. FINMA; b. the SNB; c. other Swiss financial market supervisory authorities; d. the Federal Electricity Commission. 2 The Federal Council shall regulate access to data concerning central bank transactions, taking account of recognised international standards.
Art. 78 Data access for foreign authorities
1 The trade repository shall grant a foreign financial market supervisory authority free access to the data it requires to perform its tasks if an agreement regarding cooperation between the competent Swiss and foreign supervisory authorities confirms fulfilment of the following conditions: a. The foreign financial market supervisory authority is subject to a statutory confidentiality duty. b. Forwarding of the data by the foreign financial market supervisory authority to other foreign authorities is permitted only if, on transfer to a criminal authority, mutual assistance in accordance with the Mutual Assistance Act of 20 March 1981 is possible. c. The Swiss authorities mentioned in Article 77 paragraph 1 have immediate access to trade repositories in the state of the foreign financial market supervisory authority. 2 The Federal Council shall regulate access to data concerning central bank transactions, taking account of recognised international standards.
Para. 1 let. b — SR 351.1
Art. 79 Data transmission to private individuals
1 The trade repository may transmit data to private individuals in aggregated and anonymised form. 2 The transmission of data to private individuals regarding their own transactions is permitted without restriction.
Section 2 Recognition of Foreign Trade Repositorie
Art. 80
1 A trade repository registered abroad must obtain recognition from FINMA before accepting reports in accordance with Article 104. 2 FINMA shall grant recognition: a. if the foreign trade repository is subject to appropriate regulation and supervision; and b. if the competent foreign supervisory authorities: 1. do not have any objections to the cross-border activity of the foreign trade repository, 2. guarantee that they will inform FINMA if they detect violations of the law or other irregularities on the part of Swiss participants; 3. confirm to the competent Swiss financial market supervisory authority that the conditions set out in Article 78 paragraph 1 letters b and c are fulfilled. 3 A trade repository is deemed recognised if FINMA finds that: a. the state in which the foreign trade repository has its registered office regulates and supervises its trade repositories adequately; and b. the conditions in accordance with paragraph 2 letter b are met. 4 FINMA may refuse recognition i
Chapter 6 Payment Systems
Art. 81 Definition
A payment system is an entity that clears and settles payment obligations based on uniform rules and procedures.
Art. 82 Duties
The Federal Council may define specific duties for payment systems, namely in terms of capital adequacy, risk diversification and liquidity, if this is necessary for implementing recognised international standards. The competence of the SNB to specify special requirements for systemically important payment systems by virtue of Article 23 is reserved.
Chapter 7 Supervision and Oversight
Art. 83 Responsibilities
1 FINMA is the supervisory authority. Systemically important financial market infrastructures are also subject to oversight by the SNB. 2 FINMA shall supervise compliance with the authorisation conditions and duties insofar as this task is not covered by the SNB by virtue of the oversight of the special requirements in accordance with Article 23. 3 FINMA and the SNB shall jointly carry out their supervisory and oversight activities regarding systemically important financial market infrastructures, regularly exchange information and avoid overlaps in the execution of their tasks. When cooperating with foreign supervisory and oversight authorities, they shall coordinate the discharge of their duties and their communication.
Art. 84 Auditing
1 Financial market infrastructures and financial groups must instruct an audit firm licensed by the Federal Audit Oversight Authority in accordance with Article 9a paragraph 1 AOA to conduct an audit in accordance with Article 24 of the FINMASA. 2 They must have their annual accounts, and if applicable their consolidated accounts, audited by an audit firm subject to state oversight in accordance with the ordinary auditing principles set out in the Code of Obligations (CO). 3 FINMA may audit financial market infrastructures directly.
Para. 1 — SR 221.302 Para. 1 — SR 956.1 Para. 2 — SR 220
Art. 85 Suspension of voting rights
FINMA may suspend the voting rights attached to shares or units held by qualified participants in order to enforce Article 9 paragraphs 3 and 5.
Art. 86 Voluntary authorisation return
1 A financial market infrastructure which wishes to return its authorisation must present a liquidation plan to FINMA for approval. 2 The liquidation plan must contain details on: a. the settlement of financial obligations; b. the funds made available for this purpose; c. the person responsible. 3 A financial market infrastructure is released from supervision by FINMA when it has fulfilled the duties set out in the liquidation plan.
Art. 87 Authorisation withdrawal
1 As a complement to Article 37 FINMASA, FINMA may withdraw authorisation or recognition from a financial market infrastructure if it: a. does not use the authorisation within twelve months; b. has not provided services permitted solely with the authorisation during the preceding six months; c. does not comply with the liquidation plan. 2 The withdrawal of authorisation shall cause the dissolution of the legal entity. FINMA shall designate the liquidator and oversee its activity. The insolvency law provisions in accordance with Chapter 8 remain reserved.
Para. 1 — SR 956.1
Chapter 8 Insolvency Law Provisions
Art. 88 Insolvency measures
1 Articles 25 to 37 and 37d to 37gquinquies, with the exception of Article 37g paragraph 4bis of the Banking Act of 8 November 1934 apply by analogy for financial market infrastructures unless this Act contains provisions to the contrary. 2 In the case of systemically important financial market infrastructures, FINMA shall consult the SNB before taking insolvency measures.
Para. 1 — SR 952.0 Para. 1 — Amended by Annex No 9 of the FA of 17 Dec. 2021 (Insolvency and Deposit Insurance), in force since 1 Jan. 2023 (AS 2022 732; BBl 2020 6359).
Art. 89 System protection
1 Insofar as this is possible and to the extent that they are concerned, FINMA shall inform central counterparties, central securities depositories, payment systems and those DLT trading facilities that provide comparable central custody, clearing or settlement services, in Switzerland and abroad, of the insolvency measures it intends to take against a participant and which limit the participant's power of disposal. It shall also inform them of the precise time of entry into effect of the measures. 2 The orders given to a central counterparty, central securities depository, payment system or a DLT trading facility that provides comparable central custody, clearing or settlement services by a participant against which such an insolvency measure has been taken shall be legally enforceable and binding on third parties if: a. they were introduced before the measure was ordered and were unalterable in accordance with the rules of the financial market infrastructure; or b. they were executed
Para. 1 — Amended by No I 10 of the FA of 25 Sept. 2020 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 33, 399; BBl 2020 233). Para. 2 — Amended by No I 10 of the FA of 25 Sept. 2020 on the Adaptation of Federal Law to Developments in Distributed Ledger Technology, in force since 1 Aug. 2021 (AS 2021 33, 399; BBl 2020 233).
Art. 90 Primacy of agreements in the event of participant insolvency
1 Insolvency measures that are ordered against a central counterparty's participant have no effect on previously concluded agreements between the central counterparty and the participant regarding: a. the offsetting of receivables, including the agreed method and valuation; b. the direct realisation of collateral in the form of securities or other financial instruments, including cash collateral (excluding physical cash), whose value can be determined objectively; c. the transfer of receivables and liabilities, and collateral in the form of securities or other financial instruments, including cash collateral (excluding physical cash), whose value can be determined objectively. 2 Following the netting or realisation carried out by the central counterparty in accordance with paragraph 1 letters a and b, the participant's remaining entitlements shall be segregated in favour of its clients and indirect participants. 3 Measures to the contrary ordered within the scope of the postponement of
Para. 1 — Amended by Annex No 9 of the FA of 17 Dec. 2021 (Insolvency and Deposit Insurance), in force since 1 Jan. 2023 (AS 2022 732; BBl 2020 6359). Para. 1 — Amended by Annex No 9 of the FA of 17 Dec. 2021 (Insolvency and Deposit Insurance), in force since 1 Jan. 2023 (AS 2022 732; BBl 2020 6359).
Art. 91 Primacy of agreements in the event of insolvency of an indirect participant
1 Insolvency measures that are ordered against a central counterparty's indirect participant have no effect on previously concluded agreements pursuant to Article 90 paragraph 1 letters a to c between the participant and the indirect participant. 2 Following the netting or realisation carried out by the participant within the meaning of Article 90 paragraph 1 letters a and b, the indirect participant's remaining entitlements shall be segregated in favour of its clients and indirect participants. 3 Paragraphs 1 and 2 shall also apply to insolvency measures against the indirect participant of another indirect participant. 4 Measures to the contrary ordered within the scope of the postponement of the termination of contracts by FINMA are reserved.
Art. 92 Postponement of the termination of contracts
If FINMA postpones the termination of contracts and the exercise of rights to terminate them, it shall take account of the implications for the financial markets and the secure and orderly operation of the affected financial market infrastructure, its participants and other financial market infrastructures associated with it.