FINMA calls on all asset managers and trustees: "The time to act is now!"

Dr. Jean-Claude Spillmann
Partner, Head Asset & Wealth Management and Banking Regulatory, Legal, PwC Switzerland

With the FINMA Guidance 01/2022 of 4 May 2022 ‘Timetable for the licensing process for portfolio managers and trustees’, FINMA is once again calling on the respective financial institutions to act. With the FINMA Guidance, it intends to outline the necessary steps in the approval process once again, to communicate recommendations for the implementation of the obligations under FinIA and to present the corresponding timetable.

Asset managers and trustees have been subject to the Financial Institutions Act (FinIA) since 1 January 2020 and require a licence from FINMA to conduct their business. After receiving the permit, asset managers and trustees will be continuously monitored by a so-called supervisory organisation (SO). According to Art. 74 para. 2 FinIA, financial institutions that were not subject to a licence requirement under previous law must observe the deadline of 31 December 2022 to submit their application to FINMA.

In the Guidance, FINMA points out that applicants must first submit their application to an SO for review and that the application can only be submitted to FINMA after the SO’s review has been completed and the SO's follow-up confirmation has been received. Since the follow-up procedure with the SO can take a certain amount of time depending on the complexity and quality of the application dossier, FINMA expressly recommends that all institutions concerned should submit the complete licence application to an SO by 30 June 2022.

In the Guidance, FINMA draws attention to the consequences of a failure to submit or a delayed submission of the application: if the institution in question intentionally operates without a licence after 1 January 2023, regulatory and criminal law consequences are to be expected. Based on its duty to report criminal offenses, FINMA will report these cases to the criminal prosecution authorities and, for its part, initiate enforcement investigations. An extension of deadline is only permissible in exceptional cases, namely if the financial institution could show, that it had taken all necessary steps to comply with the transition periods before 31 December 2022 in a timely manner in order to comply with the transitional periods, but that due to external influences outside their control run the risk of missing the deadline.

According to the last FINMA survey from December 2021, a total of 1,200 institutions intend to submit their application to an SO by 30 June 2022. However, by 25 April 2022, only 409 institutions had submitted a complete application to FINMA; FINMA approved only 242 of these institutions. FINMA has recorded an increase in applications since the beginning of the year. Nevertheless, the number is below the expectations of FINMA and the reports submitted by the institutes. FINMA is requesting institutions that are subject to a licence and no longer carry out activities that require a licence after 1 January 2023 to report this to FINMA in writing by email without delay.

How can we support you in obtaining the required licence?

PwC Legal Switzerland has many years of experience in successfully supporting FINMA licence applications – and not just since the FINIG came into force! PwC Legal Switzerland has an attractive service package available for asset managers and trustees, which is characterised by a high degree of customisation and cost security. The package includes the preparation of the application and the necessary documents (such as: adapted articles of association, organisational regulations, directives, forms and supporting documents) as well as the necessary advice before and during the application preparation process. In addition, we support you in the exchange with the SO and FINMA until the licence is obtained.

Contact us if we can assist you with the implementation of FinIA.

PwC ‛FinIA Service Package’ for portfolio managers and trustees

PwC supplements its comprehensive FinSA/FinIA service range by adding attractive fixed-price offers for support in obtaining FINMA authorisation as a portfolio manager or trustee in accordance with FinIA.

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