On 29 May 2018, the National Council passed its resolution on the Financial Services Act (FinSA) and the Financial Institutions Act (FinIA). Shortly thereafter, on 4 June 2018, the Council of States discussed about FinSA and FinIA and resolved the following differences:
- Active information duty in the event of changes to information already provided: The Council of States accepts the National Council’s resolution that the financial service provider is not obliged to inform the client immediately or during the next contact with the client, if there are subsequent changes in relation to the information provided to the client.
- No reversal of the burden of proof for prospectus and basic information sheet liability: The Council of States accepts the National Council’s resolution that in the event of incorrect, misleading or legally not accurate information in the prospectus, in the basic information sheet or in similar communication papers, the burden of proof is imposed on the client for negligent conduct (culpable liability).
Following the Council of States’ resolution, the Economic Affairs and Taxation Committee of the National Council (WAK-N) discussed again about FinSA and FinIA and passed its proposition to the National Council on 7 June 2018.
Regarding FinSA the following differences still remain open:
- Self-regulation on the training and education of client advisors: The Council of States still upholds the deletion of the provision. By way of compromise, the WAK-N would like to return to the proposal of the Federal Council. Hence, financial service providers should be able to define industry-specific minimum standards for training and education programs of client advisors. The Federal Council should be able to determine the requirements for the training and education programs for client advisors, if there are no adequate minimum standards available.
- Reduction of penalties in relation to the basic information sheet: The Council of States is of the opinion that the legal penalties foreseen for false declarations, concealment of material facts and non-publication / publication not in due time of the basic information sheet shall be the same as for the same offences in relation to the prospectus. On the other hand, the WAK-N is of the opinion that the legal penalties for the offences mentioned above should be less in relation to the basic information sheet than those foreseen for the same offences in relation to the prospectus.
- Exclusion of the right of withdrawal in "door-to-door business" with existing clients of financial service providers: During the third consultation, the Council of States demanded that the regulations should not apply to insurance contracts and legal transactions that are concluded by financial institutions and banks under existing financial services agreements in accordance with FinSA. The majority of the WAK-N agreed with this proposal, whereas the minority would like that the provisions only not apply to insurance contracts.
Regarding FinIA the Council of States accepts the National Council’s resolution that the grandfathering clause shall be deleted. Therefore, independent asset managers who have been performing their activity for fifteen years or more at the time the law will come into force will also require a license as independent asset manager according to FinIA.
The consultation process has gained a lot of momentum, so that an early adoption of both laws and thus an entry into force of FinIA and FinSA in 2019 is more and more likely.
The consultation draft for the ordinances of FinSA and FinIA is expected for autumn 2018.