Contrary to the initial foreseen timeline, the ordinances (FinSO and FinIO) were not officially available in July, the final version will be adopted by the Federal Council only at the beginning of November.
Due to this delay, the Federal Department of Finance (FDF) intends to suggest to the Federal Council to adopt 1.1.2020 as the entry into force date of the new legislation and to offer a two-year transition period for specific implementations. This reflects a survey sent to the major financial services intermediaries at the end of August. Whether or not the Federal Council follows the FDF advise is not known as of today.
The next foreseen steps if everything goes as expected:
- 06.11.2019: final version of the ordinances will be adopted by the Federal Council
- Q4 2019: FINMA may open consultation on FINMA ordinances
- 01.01.2020: entry into force FinSA (“Financial Services Act”) + FinIA (“Financial Institutions Act”) + revised CISA (“Collective Investment Scheme Act”) + related ordinances
- 05/06.2020: publication of final FINMA ordinances + FINMA circulars
- 01.07.2020: entry into force FINMA ordinances
- Not before 01.07.2020 SFAMA self-regulations
- 31.12.2021 (likely): end transitional period FinSA/O (for the articles 103-106 FinSO)
- 31.12.2022: end of transitional period FinIA/O
Please note that the final outcome of the new regulation will only be known around Q2/2020, once all the ordinances have been finalized and published. As experienced in the last revision of the Collective investment Schemes Act in 2013, the FINMA ordinance, eventual circular letters and SFAMA self-regulation may have substantial impact on all of us. We therefore carefully monitor the development and will provide you with more detailed information as soon whenever available.
In order to become familiar with some of the new concepts and future changes:
FinSA will abolish the term of “distribution” in Switzerland and replace it by the more restricted definition of “offer”. As a direct consequence, the licensing requirement for Swiss distributors will be abolished. The FINMA position will be primordial to clarify the future of the current Swiss distributors.
No major change to foreign collective investment schemes offered to non-qualified investors is foreseen. The appointment of a representative and a paying agent in Switzerland remains as well as the FINMA registration of your funds prior to any offerings towards non-qualified (retail) investors.
The new regulation foresees that foreign collective investment schemes offered to qualified investors only, will no longer need to appoint a representative and a paying agent in Switzerland. However, there is one exception if the units are offered to high-net-worth individuals (HNWI) who have “opted out” and wish to be treated as professional clients. This, subject to further FINMA ordinance (expected next year) and market praxis (defined within FINMA circulars, SFAMA self-regulations and guidelines) may include the entire discretionary wealth management sector.
A new client classification will appear with the implementation of FinSA (retail, professional and institutional), but in parallel the current investor segmentation under the CISA (qualified and non-qualified investors) will be maintained.
To simplify the access to the Swiss market place, English should be accepted for all legal documents except for BIB (equivalent of PRIIPS). But this exception is under review and might be dropped in the finalized ordinance.
A big simplification will be implemented for ETFs. The prior approval of the funds by FINMA will still be required, but the listing on an approved Swiss stock exchange may be done on a share class level.
As a result of the above, we recommend to not make major changes to your actual setup. We’ll let you know in time if you get relieve by the new regulation or need to make changes to your actual setup.