Financial Market Supervision Act (FINMASA)
Inserted by Annex No II 16 of the Financial Institutions Act of 15 June 2018, in force since 1 Jan. 2020 (AS 2018 5247, 2019 4631; BBl 2015 8901). Amended by Annex 1 No 4 of the FA of 19 March 2021, in force since 1 Jan. 2022 (AS 2021 656; BBl 2019 5451).
English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Chapter 1 General Provisions
Art. 43a Supervisory organisation
1 The ongoing supervision of portfolio managers and trustees under Article 17 of the Financial Institutions Act of 15 June 2018 is performed by one or more supervisory organisations with their registered office in Switzerland. 2 The supervisory organisation shall require authorisation from FINMA before commencing its supervisory activity and shall be supervised by FINMA. 3 The supervisory organisation may also supervise financial intermediaries under Article 2 paragraph 3 of the Anti-Money Laundering Act of 10 October 1997 (AMLA) with regard to compliance with their duties under AMLA, provided they are recognised as a self-regulatory organisation in accordance with Article 24 AMLA. 4 If the supervisory organisation is also active in accordance with paragraph 3 as a self-regulatory organisation, it shall ensure that this is evident to others at all times.
Para. 1 — SR 954.1 Para. 1 — Amended by Annex 1 No 4 of the FA of 19 March 2021, in force since 1 Jan. 2022 (AS 2021 656; BBl 2019 5451). Para. 3 — SR 955.0
Art. 43b Continuous supervision
1 The supervisory organisation shall continuously monitor whether portfolio managers and trustees in accordance with Article 17 of the Financial Institutions Act of 15 June 2018 are in compliance with the financial market legislation to which they are subject. 2 Where the supervisory organisation detects violations of supervisory provisions or other irregularities, it shall give the audited supervised person or entity an appropriate period to restore compliance with the law. If the period is not complied with, it informs FINMA. 3 The Federal Council shall determine the main aspects and content of the continuous supervision. In doing so, it shall take account of the differing size and business risks of the supervised person or entity. It may authorise FINMA to issue implementing provisions on technical matters.
Para. 1 — SR 954.1 Para. 1 — Amended by Annex 1 No 4 of the FA of 19 March 2021, in force since 1 Jan. 2022 (AS 2021 656; BBl 2019 5451).
Chapter 2 Authorisation
Art. 43c Principle
1 FINMA shall grant the supervisory organisation authorisation if the provisions of this chapter are complied with. 2 It shall approve the supervisory organisation's articles of association and organisational regulations, as well as the appointment of the persons entrusted with its administration and management. 3 Prior authorisation or approval from FINMA must be obtained in the case of changes to circumstances requiring authorisation and documents requiring approval. 4 If two or more supervisory organisations are established, the Federal Council may issue rules for the coordination of their activities and the subjection of the supervised persons and entities to a given supervisory organisation.
Art. 43d Organisation
1 The supervisory organisation must effectively be managed from Switzerland. 2 It must have appropriate management rules and be organised in such a manner that it can fulfil its duties in accordance with this Act. 3 It must have the financial and personnel resources necessary to perform its tasks. 4 It must have a management board as the operational body.
Art. 43e Guarantee of irreproachable business conduct and independence
1 The supervisory organisation and the persons responsible for its management must provide a guarantee of irreproachable business conduct. 2 Moreover, the persons responsible for administration and management must enjoy a good reputation and have the specialist qualifications required for their functions. 3 A majority of the persons charged with administration must be independent of the supervised persons and entities. 4 The members of the management board must be independent of the persons and entities supervised by the supervisory organisation. 5 The persons entrusted with supervision must be independent of the persons and entities they supervise. The tasks of a supervisory organisation under this Act and those of a self-regulatory organisation under AMLA may be managed by the same persons and carried out by the same staff.
Para. 5 — SR 955.0
Art. 43f Funding and reserves
1 The supervisory organisation shall finance its supervisory in individual cases and when providing services from contributions paid by the supervised persons and entities. 2 The supervisory organisation shall form reserves within a reasonable time for the exercise of its supervisory activity in an amount equivalent to one annual budget. 3 The Confederation may grant the supervisory organisation a loan on market terms in order to guarantee its liquidity until the reserves in accordance with paragraph 2 have been formed in full.
Art. 43g Liability
Article 19 applies by analogy to the supervisory organisation.
Chapter 3 Supervision of the Supervisory Organisat
Art. 43h Principles
1 The supervisory organisation shall periodically inform FINMA about its supervisory activity. 2 FINMA shall verify whether the supervisory organisation meets the requirements under Chapter 2 of this title and whether it is performing its supervisory tasks. 3 The supervisory organisation must furnish FINMA with all the information and documents that FINMA requires to supervise the supervisory organisation.
Art. 43i Measures
1 FINMA shall take the necessary measures if the supervisory organisation does not meet the requirements under Chapter 2 of this title or does not perform its supervisory tasks. 2 FINMA may dismiss persons who no longer fulfil the guarantee of irreproachable business conduct. 3 If no other measure proves effective, FINMA may liquidate the supervisory organisation and transfer the supervisory activity to another supervisory organisation as a measure of last resort. 4 If there are indications of irregularities and the supervisory organisation does not take the measures required to restore compliance with the law, FINMA may: a. conduct an audit of the supervised person or entity; b. appoint an audit agent in accordance with Article 24a; or c. make use of supervisory instruments in accordance with Articles 29–37.
Chapter 4 Data Processing
Art. 43j
Article 23 applies by analogy.
Chapter 5 Supervisory Instruments of the Superviso
Art. 43k Auditing
1 The supervisory organisation may carry out the audit of its supervised persons and entities itself or arrange for it to be carried out by an audit company that: a. is licensed as an auditor by the Federal Audit Oversight Authority in accordance with Article 6 of the Auditor Oversight Act of 16 December 2005; b. is adequately organised for this audit; and c. does not perform any other activity requiring authorisation under the financial market acts. 2 For audits conducted by an audit company in accordance with paragraph 1, a lead auditor must be appointed who: a. is licensed by the Federal Audit Oversight Authority as an auditor in accordance with Article 5 of the Audit Oversight Act; b. possesses the required specialist knowledge and practical experience to conduct the audit in accordance with paragraph 1. 3 Articles 24 paragraphs 2–5 and 24a–28a apply by analogy. 4 If so ordered by the supervisory organisation, the supervised persons and entities must make an advance payment to cove
Para. 1 let. a — SR 221.302
Art. 43l Duty to provide information and to report
1 The supervised persons and entities, their audit companies and auditors as well as persons or companies that are qualified investors or that have a substantial participation in the supervised persons and entities must provide FINMA with all information and documents that it requires to carry out its tasks. 2 The supervised persons and entities and the audit companies that conduct audits of them must also immediately report to FINMA any incident that is of substantial importance to the supervision.