In view of the entry into force of the Financial Services Act (FinSA), the Financial Institutions Act (FinIA), the revised CISA, the related Federal Council ordinances, and the new and updated FINMA ordinances and circulars, SFAMA is currently revising all of its self-regulation materials.
The changes to the SFAMA guidelines must be recognized by FINMA, which will only happen once FINMA has signed off its ordinances and circulars. Based on the new Ordinance to the Financial Market Supervision Act (FINMASA Ordinance), the possibility of FINMA having to allow for additional consultations within the federal government and with market participants in relation to its recognition of the self-regulation materials cannot be ruled out. This makes it highly unlikely that the revised AMAS' self-regulation materials will be published in Summer 2021. All existing SFAMA model documents can continue to be used until the transition period ends on 30 June 2022.
A two-year transition period applies to the new code of conduct (Arts. 7-18 FinSA) and organizational rules (Arts. 21-27 FinSA). Financial service providers that wish to take advantage of this two-year transition period must comply with the existing conduct and organizational rules under Articles 20-24 of the revised CISA that were in force on 31 December 2019 until they have achieved compliance with the new obligations under the FinSA. This entails ensuring compliance not only with the CISA and its related ordinance (CISO), but also with the relevant SFAMA self-regulation recognized as a minimum standard by FINMA. This in turn means that the existing regulatory requirement to conclude distribution agreements continues to apply.
Deadline for submitting revising fund documents to FINMA (implementation of FinSA/FinIA)
According to Art. 144 para. 3 CISO, fund management companies, SICAVs, and limited partner-ships for collective investment must submit revised fund contracts, investment regulations, and partnership agreements to FINMA within two years of the FinSA and FinIA entering into force. This would make the deadline 31 December 2021.
Since the revision of the self-regulation materials (including model documents) is taking longer than originally anticipated, it is no longer realistic to expect that the documents will be finalized in all languages before the summer vacation period. To ensure that members nevertheless have enough time to implement the revised self-regulation materials, the Asset Management Association Switzerland asked FINMA to extend the deadline for submitting fund documents revised in line with the FinSA and FinIA. We are pleased to inform you that, on 12 July 2021, FINMA extended the deadline under Art. 144 para. 3 CISO until 30 June 2022. The revised fund documents must now be submitted to FINMA by 30 June 2022 at the latest.
FINMA extends deadline for revising fund documents (Art. 144 para. 3 CISO) until 30 June 2022
Three reasons prompted the Asset Management Association Switzerland to launch its self-regulation initiative:
- The Collective Investment Schemes Act is designed as a framework law, and although the ordinances offer more precise definitions, there is still intentionally considerable room for interpretation with regard to self-regulation. Self-regulation guarantees uniform implementation and thus makes a significant contribution in respect of investor protection and legal security for the fund industry.
- Collective investment schemes have become more popular and have enjoyed rapid growth. The range of products on offer has increased sharply, and new distribution channels have emerged. In addition to this, the Collective Investment Schemes Act is no longer a law purely focused on products, and instead goes further with regulations on the activities of certain asset managers. The Asset Management Association Switzerland also wants to make its contribution to self-regulation in this regard.
- As key products for banks, insurers and independent asset managers, collective investment schemes make a significant contribution to the good standing of the Swiss financial center as a whole. One of the association's primary tasks is to ensure that the integrity and reputation of the Swiss fund industry are maintained in the future. Self-regulation underscores this intention.
Self-regulation has the following aims:
- to maintain and promote the standing of the Swiss fund industry in Switzerland and abroad,
- to ensure that the products and services offered on the Swiss fund market meet high quality standards, and
- to provide for the greatest possible transparency in respect of the collective investment schemes offered on the Swiss market.
Clients who buy collective investment schemes that have been approved in Switzerland should be able to rely on these being of high quality, and offered in a professional and transparent manner.
Recognition as minimum standard
The supervisory authority has recognized the association's self-regulation regime as a minimum standard. Self-regulation applies differently to the various licensees pursuant to the Collective Investment Schemes Act.
The supervisory authority has compliance with the provisions applicable for the affected institutions checked by their auditors.
The association's self-regulation measures comprise
- the Code of Conduct for the Swiss Fund Industry, which is actually the core component of the self-regulation regime, as well as
- supplementary guidelines relating to clearly defined individual functions, and
- model documents for the management and distribution of collective investment schemes.
In addition to this, within the area of voluntary self-regulation, the Asset Management Association Switzerland issues specialist recommendations and information as well as guides and checklists.
The Asset Management Association Switzerland provides the fund industry with a wide range of model documents for collective investment schemes.
The Swiss Financial Market Supervisory Authority FINMA has acknowledged and accepted the model documents. The Swiss Federal Tax Administration (FTA) subsequently approved the proposed wording in respect of the relevant tax regulations.
These texts are proposed wordings. Every fund management company is free to choose more detailed wordings or even different formulations. However, with a view to ensuring the greatest possible efficiency, the FINMA and the association recommend using the model texts insofar as is possible.
The association's aim is for the self-regulation measures to ensure fair representation of investors' interests, promote the use of internationally recognized standards, and eliminate unprofessional practices in the offering and distribution of collective investment schemes.
The association actively supports its members in implementing the self-regulation measures.