New registration obligations for Swiss and foreign client advisers

В настоящей чрезвычайно актуальной статье рассматриваются новые правила относительно регистрации  консультантов, а также поставщиков финансовых услуг, которые вступают в силу с 1 января 2020 года. Эти правила окажут значительное влияние на швейцарский банковский и финансовый рынки, как в Швейцарии, так и за ее пределами.

«Консультанты» – это физические лица, которые предоставляют финансовые услуги от имени поставщика финансовых услуг или сами, в том числе:

  • сотрудники банка;
  • торговцы ценными бумагами;
  • инвестиционные менеджеры;
  • агенты по размещению ценных бумаг или финансовых учреждений;
  • независимые поставщики услуг.
    «Финансовые услуги» определяются как:
  • приобретение или выбытие финансовых инструментов;
  • принятие и передача заказов, относящихся к финансовым инструментам;
  • управление финансовыми инструментами (управление активами);
  • персональные советы относительно финансовых инструментов (инвестиционные советы);
  • предоставление кредита для совершения операций с финансовыми инструментами.

Это определение не включает маркетинговую и предпродажную деятельность финансовых служб, подпадающую под действие Закона о финансовых услугах.

Client advisers
New regulatory developments
Financial Services Ordinance draft
Foreign financial service providers
Client advisers

On 24 October 2018 Parliament formally passed the bills of the new Financial Services Act and Financial Institution Act. These laws will have a significant impact on the Swiss banking and financial market landscape, as well as the applicable rules for providing banking and financial services both within and on a cross-border basis into Switzerland. The new legislation will enter into force on 1 January 2020.

On 24 October 2018 the Federal Council released draft ordinances implementing the Financial Services Act (the Financial Services Ordinance) and the Financial Institution Act (the Financial Institution Ordinance) for consultation. Comments can be provided on these drafts until 6 February 2019. It is expected that the finalised ordinances will enter into force concomitantly with the Financial Institution Act and the Financial Services Act on 1 January 2020.

The Financial Services Act’s scope provision foresees that it will apply to:

financial service providers;
client advisers; and
issuers and offerors of financial instruments.
The legislation will apply to numerous market participants, including banks.

This article provides a short overview of the new concept of ‘client advisers’ and the foreseeable implications of the new rules for banks and other financial service providers.


‘Client advisers’ are natural persons who provide financial services either in the name of a financial service provider or themselves, including:

bank employees;
securities dealers;
investment managers;
placement agents or other financial institutions; or
independent service providers.
‘Financial services’ are defined as:

the acquisition or disposal of financial instruments;
the acceptance and conveyance of orders pertaining to financial instruments;
the management of financial instruments (asset management);
personal advice regarding financial instruments (investment advice); and
the granting of credit for the purpose of transactions with financial instruments.
This definition does not include the marketing and pre-marketing activities of financial services as falling within the scope of the Financial Services Act.

New regulatory developments

The Financial Services Act foresees an obligation for client advisers to register in a new Swiss adviser register.

Until now, Switzerland’s position towards marketing, advising on and managing financial instruments has been quite liberal, both within and on a cross-border basis into Switzerland.

Currently, only the marketing of collective investment schemes and structured products is regulated in and on a cross-border basis into Switzerland. It is subject to requirements based on the categorisation of the targeted clients. In particular, marketing foreign collective investment schemes, even to qualified (ie, professional) investors in Switzerland requires a licence from the Financial Market Supervisory Authority (FINMA) or, on a cross-border basis, a licence to market collective investment schemes in the home jurisdiction of the relevant marketing entity.

By contrast, marketing other financial products in Switzerland or targeting clients on a cross-border basis into Switzerland is generally permissible if no permanent physical presence in Switzerland is factually established.

Following the European Union’s lead, the main purposes of enacting the new Swiss financial regulations are not only to ensure the best possible client protection but also to create a level playing field between the providers of different financial services and products.

To create such a level playing field, the enacting of the Financial Services Act will lead to the abrogation of all provisions specific to marketing of collective investment schemes since there were no such requirements pertaining to other financial products.

Financial Services Ordinance draft

As mentioned, marketing is not listed as one of the financial services which triggers a registration obligation as a client adviser under the Financial Services Act.

However, the current wording of the draft ordinance casts uncertainty on the possibility to market financial products in or on a cross-border basis into Switzerland without having to register as a client adviser, irrespective of the Financial Services Act’s definition of ‘relevant financial services’.

The current draft of Article 3(1) of the Financial Services Ordinance expands the scope of financial services which trigger an obligation to register as a client adviser by defining the activity of selling and disposing of financial instruments as “every activity, such as intermediation, that is specifically aimed at the acquisition or sale of a financial instrument”.

Should this wording be maintained, it would factually add pre-marketing and marketing of financial instruments to the list of financial services which trigger the registration obligation. This draft provision oversteps the boundaries set out by the legislation that the ordinance is supposed to (merely) implement. Such an implementation provision may not extend the scope of the Financial Services Act as approved by Parliament. For this reason, it should arguably be deleted from the draft ordinance.

Foreign financial service providers

Another unexpected provision of the draft Financial Services Ordinance would also result in an excessive requirement for foreign financial service providers and, in particular, on a cross-border basis, for regulated entities such as foreign banks.

The Financial Services Act enables the Federal Council to exempt foreign client advisers from the obligation to register in the client adviser register if they:

are subject to prudential supervision abroad; and
serve only professional clients.
It was largely expected that the Financial Services Ordinance would implement the Financial Services Act’s wording literally. Instead, the draft ordinance adds a further condition to those stated above: it requires that foreign client advisers also be part of a group that is subject to the consolidated supervision of the Swiss regulator FINMA.

This further condition would significantly increase the number of natural persons (including foreign bank employees) who would need to be registered in the client register before providing services in Switzerland. Hopefully, this will be adequately addressed by the interested parties during the consultation period and the consolidated supervision condition will be deleted in the final version of the Financial Services Ordinance.


Included in the new legislation that will enter into force on 1 January 2020, client advisers (ie, natural persons who provide financial services for clients in the name of a financial service provider or themselves) are a new category of financial service provider and will need to be registered in the new client register.

This obligation will apply to domestic client advisers of Swiss service providers that are not regulated according to Swiss financial market legislation (eg, placement agents). It is irrelevant whether such advisers deal with retail or professional investors. Foreign client advisers who are not working for a prudentially supervised foreign financial service provider or who target non-professional investors will also be subject to the registration requirement. Whether this obligation will be further extended to client advisers who are prudentially supervised abroad but are not part of a group subject to consolidated supervision of FINMA will be decided after the consultation period of the Financial Services Ordinance has ended.

Авторы: Stephanie Comtesse, Reto Luthiger


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