In principle, the acceptance of deposits from the public on a professional basis and the management of these under its own name is a licensable activity under all supervisory laws. Every activity which involves more than 20 customers shall qualify as acting on a professional basis.
The Banking Act forbids generally the acceptance of deposits from the public other than in the form a debenture issue or that it falls under the exemptions foreseen by the Banking Ordinance. A banking activity arises whenever the deposits so accepted are used to finance third parties.
The Stock-Exchange Act subjects – in addition to stock exchanges and similar institutions – trading in securities in one's own name but for the account of customers to a licensing requirement whenever the securities dealer maintains accounts or security deposits for this customer himself or with third parties. Furthermore, certain activities in the financial area which can become relevant for reasons of the protection of the function are subject to a licensing requirement. The Stock-Exchange Act thus subjects to a licensing requirement the activity of dealers acting for their own account, of issuing houses, of dealers dealing in derivatives and market makers.
Where collective investment schemes are concerned, to accept money from the public for the purpose of collective investments managed by a third party requires an authorisation.
Under the Federal Act on Collective Investment Schemes, and subject to the exemptions to the authorisation requirement pursuant to Art. 8 CISO, any individual or entity that manages or acts as a custodian of collective investments is required to obtain an authorisation. This includes fund management companies, SICAVs (investment companies with variable capital), SICAFs (investment companies with fixed capital), limited partnerships for collective investments, custodian banks, asset managers of Swiss and foreign collective investment schemes, distributors and representatives of foreign collective investment schemes. Asset managers of foreign collective investment schemes may apply to be supervised by the SFBC.
In addition, the following documents of collective investment schemes require the approval of the SFBC: the collective investment contract of investment funds, the Articles of Incorporation and regulations of SICAVs/SICAFs and the partnership agreements of limited partnerships for collective investments. In the case of foreign investment schemes, the relevant documents require the approval as soon as public distribution is conducted within or from Switzerland.
If these activities are carried out on the internet, special rules may apply. |
According to existing law asset managers are not subject to supervision by the SFBC provided that they neither themselves nor through third party intermediaries keep accounts or deposits for their clients. Asset managers manage their clients’ funds deposited with a bank by means of a power of attorney. They place orders to buy or sell securities in their clients’ names and for their accounts. In contrast securities dealers, who keep execution accounts for their clients and place orders to buy or sell securities in their own name but for the account of their clients, are supervised by the SFBC.
Precious metal dealers are not subject to supervision by the SFBC so long as the monies received from the clients are for the sole purpose of executing the transactions on precious metals and the dealers dispose physically of the clients' precious metal assets.
Introducing brokers are not subject to any authorisation requirements provided that they do not act as a representative of a foreign securities dealer.
In the absence of any authorisation requirements for these kinds of businesses, their activities is not subject to supervision by the SFBC. |
