These include banks, portfolio managers and trustees, fund management companies, investment companies with variable capital, limited partnerships for collective investments, investment companies with fixed capital, managers of collective assets, insurance institutions, securities firms and casinos, all of which are subject to prudential supervision.
However, financial intermediaries are also persons who on a professional basis accept or hold on deposit assets belonging to others or who assist in the investment or transfer of such assets; they include in particular persons who:
Various financial intermediaries are excluded from the scope of the Anti-Money Laundering Act: These are the Swiss National Bank, tax-exempt occupational pension institutions and persons who provide their services solely to tax-exempt occupational pension institutions, as well as all financial intermediaries under Art. 2 para. 3 who provide their services solely to financial intermediaries under Art. 2 para. 2 or to foreign financial intermediaries who are subject to equivalent supervision (Art. 2 para. 4 AMLA).
In an ordinance of 11 November 2015 (AMLO, SR 955.01), the Federal Council drew a distinction between professional and non-professional activities.
Furthermore, the former Control Authority (integrated into FINMA as of 1 January 2009) published various circulars on subordination issues and summarised them in a subordination comment. The circulars of the former Control Authority are no longer current, but can still be used as an aid to interpretation in individual cases.
SRO PolyReg is a self-regulatory organisation recognised by FINMA which monitors and enforces the implementation of the due diligence requirements of the Anti-Money Laundering Act (AMLA) among its members. This monitoring does not include the protection of investors, especially since the AMLA itself is not designed to protect investors. SRO PolyReg therefore does not exercise prudential supervision over its members.
The membership list of SRO PolyReg is not published as a result of the general meeting in 2004. However, FINMA maintains a list of all SRO members. This list is publicly accessible in electronic form.
Interested parties can also either enquire about a member's regulatory status directly from SRO PolyReg or ask the member to provide them with a confirmation of membership.
Membership confirmations can also be downloaded from the SRO PolyReg website at any time (in German, French, Italian or English). As the recipient of such a confirmation, you can check its authenticity - also online. The verification of an online membership confirmation also indicates that a confirmed membership is up to date.
No. Internal matters of the association SRO PolyReg are subject to data protection and are not public. This also applies to media enquiries.
Membership is open to any natural or legal person who is required to join a self-regulatory organisation as a financial intermediary under Art. 2 para. 2 let. bbis or para. 3 AMLA and who fulfils the requirements under Art. 14 para. 2 AMLA (§3 para. 1 Statutes of SRO PolyReg (Statutes)).
Natural and legal persons who are not financial intermediaries under Article 2 paragraph 3 AMLA may voluntarily join as members if they regularly perform delegated due diligence duties from Switzerland for domestic or foreign financial intermediaries or prove that they require supervision for other reasons for their business activities in the field of financial services. With regard to these activities, they are treated in the same way as financial intermediaries subject to supervision (§3 para. 2 of the Statutes).
Domiciliary companies cannot become members of SRO PolyReg. Pursuant to §23 of the Regulations of SRO PolyReg (Regulations), domiciliary companies are legal entities that do not carry on a commercial, manufacturing, or other business conducted in a commercial manner. If a company does not pursue a commercial activity or does not have its own staff, this may be indicative of a domiciliary company.
If the answer does not follow directly from Art. 2 para. 3 AMLA, the Swiss Financial Market Supervisory Authority (FINMA) will advise you in a legally binding manner on the question of the obligation to submit. Meanwhile, FINMA's practice is summarised in Circular 2011/1 «Tätigkeit als Finanzintermediär nach GwG».
Anyone who carries out an activity subject to the AMLA on a professional basis requires either a FINMA licence or - in the case of Art. 2 para. 3 AMLA - an SRO affiliation. The threshold for the professional nature is defined in Art. 7 of the Anti-Money Laundering Ordinance (AMLO; SR 955.01).
SRO PolyReg does not accept members on a provisional basis. However, if an activity subject to supervision is intended in the foreseeable future and if this activity can be explained and documented in detail when submitting the application for membership (e.g. by submitting sample contracts, business plan, etc.), membership is also possible before the start of the operational activity. If, on the other hand, no activity subject to supervision is intended, membership is only possible if there is another reason according to §3 para. 2 of the Statutes, which must be proven (see questions B.1 and B.5).
In such cases, voluntary membership can be applied for in accordance with §3 para. 2 of the Statutes by means of proof on the part of the business partners. However, applicants with the corresponding background must go through the ordinary application procedure (see question C.1) and are treated as financial intermediaries subject to supervision.
The application procedure is exclusively by written correspondence and goes through two phases. It begins with the submission of a complete membership application form by post. SRO PolyReg immediately confirms receipt in writing. At the same time, the application is first reviewed for classification into the fee categories according to the PolyReg fee schedule and the one-time admission fee is invoiced.
After payment, the application is formally checked for completeness and correctness of form in the first phase. Missing documents and/or incomplete information will be requested within a specified period of time. It is important to bear in mind that the membership application form is the basic dossier of a member which accompanies him/her throughout the entire membership period and which must be kept up to date by the member at all times after admission (see question F.3). The application should therefore be prepared legibly, although it may be filled in by hand.
As soon as the application has been submitted in full, it is examined materially in a second phase. The purpose of this examination is to determine whether the applicant, as a financial intermediary, can guarantee compliance with the obligations arising from the Anti-Money Laundering Act and the regulations of SRO PolyReg and, in particular, whether it can provide legally and ethically impeccable financial services of high quality within the meaning of §2 para. 2 of the Statutes. If questions or ambiguities arise, the applicant will be informed in writing and given a deadline for a written response.
If there are no reservations – or if they are eliminated by the applicant's explanations – the Executive Director will decide on the admission. The decision will be communicated with a written confirmation of admission or – in the case of non-admission – a written, justified decision that can be appealed to the arbitration court (see questions H.9 and H.11). If admission is granted, the annual fee for the current year will also be charged.
The procedure is designed in such a way that a decision is available within a period of 2 to 8 weeks from the submission of a complete application. It must be taken into account that the subsequent request for missing documents or the answering of questions in the material examination procedure (2nd phase) can lead to deviations from this estimation.
In the case of applications from Virtual Asset Service Providers (VASP) or more complex business models, experience has shown that a longer admission procedure has to be expected.
An express procedure does not exist.
No. Although we are happy to get to know you, a careful formal and material examination of the application is a legal obligation of SRO PolyReg and must be guaranteed regardless of your time pressure. The examination of the application – combined with the administrative processing – necessarily takes a certain amount of time. It is therefore advisable to approach SRO PolyReg with an application for admission at an early stage.
In principle, the ordinary (one-off) admission fee - depending on AMLA relevance - is CHF 900 for activities that are not predominantly pertinent to the AMLA and CHF 1'200 for activities that are predominantly pertinent to the AMLA. For applications for admission from the area of FinTech and new technologies, however, additional examination costs are incurred (see fee schedule).
After admission, the annual membership fee varies between CHF 1,000 and CHF 5,600, depending on the size of the business and the AMLA relevance.
For members of organisation size 4 (28 and more persons), the Executive Committee determines the admission and annual fees. However, these may not be lower than for members of organisation size 3.
Inactive members pay a flat membership fee of CHF 850 (see question E.3).
In accordance with the fee schedule, the fee is calculated (cumulatively) on the basis of the number of executives and staff fulfilling AMLA-relevant tasks, be it alone or collectively. Double counting is avoided. Part-time positions are not taken into account.
In addition to the annual membership fee, the only costs incurred are those for the annual AMLA inspections and the compulsory training. Inspections by PolyReg inspection agencies are invoiced on an hourly basis according to a standardised hourly rate of CHF 250. If inspections are exceptionally carried out by your own auditors, their fee rates apply (see question G.7).
The one-time initial training costs CHF 650 per person, the annual recurrent trainings CHF 390 (see question F.3).
Apart from the annual membership fee, the inspection and training costs, no other costs are incurred (e.g. for member support, recording mutations, etc.).
With a reference letter, a third party vouches for the trustworthiness of an applicant vis-à-vis SRO PolyReg. This reference can be provided by various parties, be it the applicant's bank, a custodian bank, business partners or personal references.
SRO PolyReg requires from its members that certain central areas of responsibility, which are considered necessary for the internal enforcement and implementation of the duties under the AMLA, are permanently staffed. The SRO recognises the function of the contact person, the person responsible for reporting to MROS and asset freezing, the person responsible for dossier management and the internal training (see membership application form on pages 4, 11, 12 and 15).
The contact person serves as the central contact person for SRO PolyReg, who can receive instructions for the member with legal effect and can enforce their internal implementation with the member. The contact person should be able to understand at least one national language. In view of possible arbitration proceedings signatory power, registered in the register of companies and a Swiss domicile are also required (§41 para. 3 of the Regulations).
The dossier manager is responsible for the correct keeping of client documentation and, in view of the territorial scope of the AMLA, must ensure that the files are available on Swiss territory at all times. In particular, it must be possible to comply immediately with any requests for information from the SRO, the inspection agency, FINMA and any seizure requests from the prosecution authorities (cf. §37 of the Regulations).
The person responsible for reporting must ensure that reports of members are submitted to the MROS, that possible freezing of assets is enforced and that SRO PolyReg is notified of the members' reports when the assets have been released.
The training officer has to ensure that the member's initial and recurrent training obligations are fulfilled and that the staff members have a sufficient level of knowledge of the AMLA (see question F.3).
In practice, this refers to all persons listed in the register of companies with signatory powers, as well as those persons who have an individual power of attorney for the applicant/member. These persons able to exercise rights and duties on behalf of the applicant/member, in particular with regard to the provision of financial intermediary activities. For these persons, a page 8 is to be filled out in the membership application form.
Otherwise, the documentation requirements are identical to those of the AMLA functionaries (see question D.12). In the case of personnel unions, the extended personal documentation must of course only be submitted once.
If your company meets the legal requirements, it can waive a limited audit. In this case, page 9 does not need to be completed and reference may be made to the fact of an opting-out.
If you have an auditor, it should be indicated on this page and the information should be documented with the enclosures listed in the application form.
This does not pose a problem for ensuring the AMLA inspection. In general, SRO PolyReg appoints a AMLA inspection agency for all members, unless the board approves a member's application according to §34 para. 1 of the Statutes, to commission its own auditors with the AMLA inspection (see question D.6).
If such an application is submitted as part of the membership application form, it must be accompanied by a declaration of acceptance of mandate from the audit firm listed on page 9. If such an application is submitted at a later date, a declaration of acceptance of mandate must be submitted subsequently.
Usually, the members of SRO PolyReg are assigned an AMLA inspection agency. However, according to §34 para. 1 of the Statutes, it is possible, upon approved request, to use the member's auditors for the AMLA inspection. However, this right is only open to members who have an auditor registered in the register of companies. An opting-out makes it impossible to submit a corresponding application.
The application can already be made in the membership application form by ticking the appropriate box on page 9 of the form, or at any later date.
A mandatory prerequisite is that the auditors must be approved by SRO PolyReg to conduct AMLA inspections in accordance with Art. 24a AMLA. The current list of approved inspection agencies can be viewed on the website of SRO PolyReg.
In addition, the auditor must be independent of the member to be inspected, which results from Art. 728 CO and the recognised guidelines on independence in the industry.
The auditor must confirm acceptance of the mandate to carry out AMLA inspections to SRO PolyReg by means of a written declaration of acceptance. In addition, the auditor must enclose a declaration whereby it undertakes to carry out inspection assignments of SRO PolyReg for the account of the member and to send the AMLA inspection report to SRO PolyReg after completion of the inspection activities.
For each of these, one page 10 is to be completed. For a larger number of employees, the personnel data can be submitted on a separate list as an Excel spreadsheet.
Agents can be employed as AMLO auxiliary persons and are thereby covered by the regulation of their principle (SRO member) without having to join an SRO as financial intermediaries themselves. This requires that they have been carefully selected by the principle, that their AMLA training is guaranteed and that they are contractually bound exclusively to the principle.
In practice, SRO PolyReg treats these agents in the same way as employees of the financial intermediary and requires a completed page 10 and a copy of the agency agreement for each agent. For the legal representative of each agent (person authorised to sign and act as the FI's contact person), the principle must submit an extract from the criminal register and a signed and dated passport or ID copy. Finally, the member is obliged to submit an updated list of agents to SRO PolyReg on a quarterly and involuntarily basis.
Members are usually obliged to attend the training courses of SRO PolyReg (§60 of the Regulations). In implementation of §61 para. 1 of the Regulations, the latter organises several initial and recurrent training courses (in different languages) throughout the calendar year. The training concept includes a full-day initial (IT) and a half-day recurrent training (RT). Self-training is possible in the area of the initial training. The recurrent training always remains in the care of SRO PolyReg.
Large companies (usually 20 or more people) that regularly hire new AMLA-relevant employees can apply for their own in-house training for the initial training of their employees on application page 14. In this case, the member must acquire his knowledge independently of the initial training offered by SRO PolyReg, but must ensure that the initial training is comparable to the initial training offered by SRO PolyReg in terms of content and scope.
Approval for in-house training also requires that the member has a suitable training officer with sound knowledge. This person may be identical with the AMLA functionary of the training officer according to page 12 of the membership application form. In this case, the member shall draft a detailed written training concept, which shall be submitted to the managing director for approval. The training concept shall provide information on the number of new employees in the AMLA-relevant area joining the organisation each year, the target groups for the training, the way in which the training is to be conducted and the available infrastructure, the frequency and duration of the training events, the instructors and the content to be conveyed.
If a corresponding application is approved by the managing director, SRO PolyReg also monitors the implementation of the submitted training concept within the framework of the AMLA inspections. Non-implementation is sanctioned in the same way as failure to attend training events organised by SRO PolyReg itself (see questions H.1 and H.2).
The application can already be made in the membership application form by ticking the appropriate box on page 14 of the form, or at any later date.
The information on page 15 must be identical in content to that on pages 4, 11 and 12. The page must also be signed and dated once by the authorised signatory(ies) of the financial intermediary and signed and dated again by all the named functionaries.
Because the AMLA functionaries are also guarantors of a member, they are more exposed from a supervisory point of view than normal employees of a member. SRO PolyReg therefore requires an extended personal documentation from the AMLA functionaries in the context of a membership application. This consists of a correctly completed page 16 of the membership application form, a current original extract from the criminal register, a signed and dated copy of the passport or ID, a curriculum vitae and at least one diploma proving the curriculum vitae. If new personnel are appointed to the AMLA functions in the course of membership, the same personal documentation is required from the new function holders.
If you do not agree with the written decision of the Executive Committee, you are free to appeal to the PolyReg Arbitration Court (§6 para. 3 and §37 para. 1 of the Statutes). From the date of receipt of the refusal decision, you have 10 days to submit the appeal in writing to the arbitration officer, Dr. Georg Lechleiter, Lawyer's office Delphinstrasse, Delphinstrasse 5, PO Box 24, 8032 Zurich (the date of the postmark is decisive for the assessment of timely receipt). A simple registration is sufficient. A statement of reasons is not required for the time being. You will be asked to do so separately by the arbitration officer, who will set a deadline.
The arbitration officer shall be in charge of the proceedings up to the point at which the written grounds of appeal and the response to the appeal have been presented. He will set deadlines for you and SRO PolyReg, warn you of the consequences of failure to comply and collect from you the registration fee set at CHF 2'000 for this case (§38 para. 7 of the Statutes; see question H.13).
The Arbitration Court freely reviews contested decisions (§38 para. 5 of the Statutes). Its decisions are final (§35 para. 2 of the Statutes and judgement of the Cantonal Court of the Canton of Zurich, published in ZR 104 no. 47).
However, an appeal against a refusal decision does not have a suspensive effect. This does not interrupt the deadline for subordination under Art. 11 para. 1 lit. b of the Anti-Money Laundering Ordinance (AMLO).
SRO PolyReg collects and manages the data required by law concerning its members and its own activities, carries out the inspections to ensure compliance with the legal provisions and submits the necessary reports in accordance with the AMLA and the instructions of the Swiss Financial Market Supervisory Authority (§2 para. 3 and §17 of the Statutes).
This means that data may be exchanged with FINMA to the extent provided for by law. Beyond this, SRO PolyReg strictly adheres to the provisions of the Federal Act on Data Protection and treats all data confidentially. This means in particular that SRO PolyReg does not provide any information about the association's internal affairs, neither to other members of the association nor to outsiders (§17 para. 2 of the Statutes).
However, individual enquiries from third parties about the existence of membership are answered. The list of members of SRO PolyReg is not public due to a decision by the general meeting. FINMA does, however, maintain a list of all SRO members. This list is publicly accessible in electronic form.
Inactive members are members who declare bindingly before the end of a calendar year by submitting a declaration of inactivity that they will not be professionally active as a financial intermediary within the meaning of the Anti-Money Laundering Ordinance (AMLO) for the duration of the following calendar year. The timely submission of the form has the effect that the member pays a lower membership fee (CHF 850.- flat rate) in the following calendar year and is automatically exempted from the initial and recurrent training.
However, the inactivity thus obtained has no effect on the inspection obligation: The inactive members are also usually inspected annually. The inspection primarily serves the purpose of verifying the actual inactivity, which has only been declared prospectively up to this point. If the inspection shows that a member is professionally active as a financial intermediary despite declared inactivity, the member is immediately reactivated and the difference to the regular membership fee is subsequently invoiced. In addition, the training obligation for the current calendar year shall be revived without further ado.
It should also be taken into account that SRO PolyReg does not accept declarations of inactivity during the first year of membership and will only accept corresponding declarations from new members who join during the year if they have at least fulfilled the initial training requirement of §39 para. 2 of the Statutes in conjunction with §60 para. 2 of the Regulations and have passed the first inspection (see questions F.3 and G.2).
In addition, a declaration of inactivity once submitted is not valid indefinitely and is rather always only taken into account for a respective calendar year. It is the responsibility of the members to submit the declaration of inactivity on time (regularly, if applicable). Late declarations will not be considered, even if there is factual inactivity.
SRO PolyReg is set up in such a way that its statutory services interact in the best possible way with the day-to-day business requirements of its members. Members are exposed to recurring requirements. This results in the following cycles:
The contribution year is based on the calendar year - regardless of when a member joins or leaves. It is not invoiced pro rata temporis because SRO PolyReg has to pay FINMA an annual supervisory fee depending on the number of its members as of 31 December of a calendar year, but irrespective of their size, level of activity and number of dossiers. It is therefore appropriate to levy the full fee on members leaving the organisation who were still members on 1 January of the following calendar year, as well as on new members joining during the year.
The pro rata costs of the supervisory levy currently amount to an average of CHF 350 per member. However, they are not passed on to the members separately, but are already included in the membership fee.
The training year is also based on the calendar year. Accordingly, each member must send at least one representative to the recurrent annual training course between January and December. The initial training must be completed within 6 months of joining the company (see question F.3).
The inactivity cycle is – in view of the above explanations on the membership fee and training year and taking into account question E.3 – based on the calendar year.
The inspection cycle is not based on the calendar year, but is initially timed by the time of admission and then by the time of the last inspection. Please note that the inspection period is also not based on the calendar year, but covers the entire period since the last inspection. Due to the core supervisory task of SRO PolyReg, the inspection cycle has priority over the fee cycle with regard to answering different questions – especially with regard to inactivity (see question G.2).
With immediate effect, you must ensure that you comply with all the association's duties. We would like to point out that you are responsible for fulfilling your duties, while it is the task of SRO PolyReg to monitor you, to draw your attention to any breaches of duty and, if necessary, to enforce the fulfilment of duties by imposing sanctions.
In addition, it is also your responsibility to exercise the rights to which you are entitled under the Statutes and Regulations and, where applicable, to comply with existing deadlines and timelines.
The duties of the members result from the Statutes and the Regulations of SRO PolyReg.
SRO PolyReg has published the above-mentioned basic documents in the currently valid version in several languages on its website. They can therefore be consulted at any time and are assumed to be known to all members, especially as the members declare with the general statement on page 18 of the membership application form that they have taken note of the Statutes and Regulations and unconditionally submit to their provisions.
In addition to the due diligence duties that you must comply with as a financial intermediary under the AMLA and which have been specified in the Regulations of SRO PolyReg, and the fulfilment of the training obligation under Art. 8 AMLA, you are subject to additional association duties. Compliance with these duties is a prerequisite for maintaining membership, as is the absence of objections to the AMLA's due diligence duties.
The training obligation must be fulfilled by completing the initial training within 6 months of the member's joining the association or, in the case of new staff members, of their taking up their position (§39 para. 2 of the Statutes in conjunction with §61 para. 2 of the Regulations). From the following year on, the duty to undergo the recurrent training must be fulfilled. SRO PolyReg considers the obligation to be fulfilled if all employees of a member with an AMLA function according to §41 para. 2 of the Regulations have participated in a recurrent training course.
In exceptional cases, the obligation to undergo the recurrent training may also be fulfilled by attending a training course at another SRO. This however requires the prior approval of the executive director of SRO PolyReg (article 60 para. 1 of the Regulations). SRO PolyReg recognises training courses of other SROs as equivalent to its own training. However, AMLA courses of banks, insurance companies and other institutions are not recognised.
Furthermore, there is a duty to report changes within the association according to §8 para. 2 of the Statutes as well as a general duty to provide information according to §15 of the Statutes. Members shall report any changes in the conditions that led to their membership to the executive director without delay. In doing so, they keep the membership file up to date. To make it easier for members, SRO PolyReg has developed a form to report changes, which should be used for all reports of changes and at the same time provides information on any enclosures that may need to be submitted. The form can be downloaded from the SRO PolyReg website at any time.
Apart from the duty to pay fees and the general duty to pay the amounts owed to the association, there is a general duty to cooperate, namely in the (ordinary and extraordinary) inspections (§51 para. 6 and §53 para. 3 of the Regulations), but also with regard to permanent availability as well as with regard to the implementation of directives of SRO PolyReg and in sanction proceedings (§54 para. 2 of the Regulations).
Attendance and participation at the general meeting (§25 of the Statutes), suggestion of agenda items at the general meeting (§25 para. 4 of the Statutes), submission of an application for the use of one's own auditors as AMLA inspection agency (§34 para. 1 of the Statutes), submission of an application for in-house training (§61 par. 3 of the Regulations), submission of an application for approval to attend a training course at another SRO (§61 par. 1 of the Regulations), submission of an application for dispensation from the initial training course (§62 par. 1 of the Regulations), submission of a declaration of inactivity and payment of a reduced flat-rate fee in the following year (fee schedule item 5), regulatory rights in exercising the due diligence obligations of the AMLA, namely the involvement of third parties (in accordance with §38 of the Regulations) as well as the submission of an application for a deferral of the audit in a maximum of two consecutive years (in accordance with §51 paras. 3 and 4 of the Regulations).
A (fee) invoice is an order of the SRO. Therefore, if necessary, it should be challenged at the office within 10 days, otherwise it becomes legally binding.
Either by resignation or by exclusion. A tacit termination, for example through bankruptcy, is not envisaged. It is the responsibility of the members to fulfil the association's duties until the end of their financial intermediary activity legitimised by their membership (see question F.3 on the duty to report changes and to cooperate). In the event of bankruptcy, membership must also be terminated in an orderly manner.
The only exception to this is in the case of deaths of owners of sole proprietorships. If, on the other hand, the sole shareholder or sole proprietor of a legal entity dies, the heirs must notify SRO PolyReg whether membership is to continue (which usually necessitates a new appointment of functions and thus a report of changes) or whether the company is to be liquidated.
Resignation may be effected at any time – in accordance with §9 of the Statutes and subject to a possible final inspection – by means of a written declaration including the reasons for the resignation to the managing director of SRO PolyReg.
The exclusion is usually one (and at the same time the most severe) sanction against a member and is only pronounced after a sanction procedure has been carried out in which the member concerned has been granted the right to be heard. On the other hand, members who do not meet their financial duties in spite of a registered reminder or who can no longer be reached at the given address will be excluded immediately (§10 para. 4 of the Statutes and §57 para. 2 of the Regulations). In such cases, the exclusion shall be direct and without sanction procedure (see question H.4).
Members are inspected on average once every twelve months by an inspection agency with regard to compliance with the association, due diligence and reporting duties on site at their premises (§51 para. 1 of the Regulations; see question F.3).
This rule applies to all members, in particular also to inactive members (see question E.3).
It is only interrupted if a deferred inspection is granted in accordance with §51 Para. 3 of the Regulations (see question G.2).
Ex officio or at the written request of a member, the ordinary inspection may be postponed up to twice by one year if the last inspection was carried out by an inspection agency of SRO PolyReg and was not an initial inspection, no significant deficiencies were found in the two previous inspections and the member's activity poses only a low money laundering risk due to its proportions (transaction volumes, assets under management, number of clients, etc.), the origin of the clients, the areas of activity and the stability of the business relationships only entails a low money laundering risk (§51 para. 3 of the Regulations). Ideally, a member can thus fall into a three-year inspection cycle, provided it submits a request for an inspection deferral in good time each year.
According to the above, initial inspections can never be postponed. New members are therefore always initially inspected at least once before an application for a deferred inspection is considered. The initial inspection concludes the first year of membership. Since the inspection cycle and the membership fee year do not usually coincide, this can mean that a declared inactivity can only be taken into account in terms of membership fees in the third calendar year of membership. This in turn also affects the training obligation (see question E.3).
An inspection is never automatically postponed. Although an inspection deferral can also be granted ex officio on the basis of risk, it is generally up to the members to request an inspection deferral. SRO PolyReg provides a standardised form for this purpose. The following deadlines must be observed in accordance with §51 para. 4 of the Regulations: For the first inspection deferral, the application must be received by the SRO PolyReg office within 6 months since the last inspection. The application for the second deferral can be submitted at the earliest one year after the last inspection, but must then be submitted within 6 months, i.e. 18 months after the last inspection at the latest.
A member's inspection agency is commissioned by SRO PolyReg in due time and with a deadline to carry out the AMLA inspection. It then contacts the member and arranges an inspection date. After the inspection has been completed, the inspection agency draws up a written report for the attention of SRO PolyReg and sends a copy directly to the member. The inspection service is then invoiced on the basis of the hourly expenses report to be signed by the member and is to be paid by the member (see question C.7).
Complaints recorded in the inspection report result in instructions from SRO PolyReg to remedy the issue and may – depending on the severity of the identified infringement – lead to the opening of sanction proceedings (§52 para. 4 of the Regulations; see question H.1).
The inspectors and SRO PolyReg shall maintain the business or professional confidentiality of the members (§51 para. 7 of the Regulations).
The inspections may also take place unannounced if this is required for the purpose of the inspection.
The inspection agencies check compliance with the provisions of the Anti-Money Laundering Act, the Statutes and the Regulations.
The inspection is carried out in accordance with the provisions of the risk-based supervisory concept and extends in particular to whether the required documents are properly completed and retained in implementation of the duty of due diligence and record keeping, whether the aforementioned documents indicate that the duties of identification and special clarification have been complied with, whether the duty to report has been duly fulfilled, if applicable, and whether the training obligation has been complied with and the employees have a sufficient level of knowledge, or whether an internal training concept has been fully implemented.
The inspection also extends to whether the requirements for affiliation to SRO PolyReg have been continuously met and whether all changes pursuant to §8 para. 2 of the Statutes have been reported without delay (§52 para. 1-3 of the Regulations).
An extraordinary inspection serves to clarify suspicious facts or irregularities as well as to gain additional knowledge in the case of detected breaches, if the level of knowledge does not already prove to be sufficient on the basis of the information from an ordinary inspection. (§53 para. 1 of the Regulations).
To conduct an extraordinary inspection, an independent investigator may be appointed who acts on behalf of the board and reports his findings in writing to the executive committee or the board delegation of SRO PolyReg. As a rule, the costs of the extraordinary inspection are to be borne by the member (§53 paras. 1 and 4 of the Regulations).
The independent investigator shall take evidence on file and prepare a written report on his findings. He may combine his report with a request for sanction. The member concerned shall assist the independent investigator and grant him/her any necessary access (§53 paras. 2 and 3 of the Regulations).
Based on the findings obtained in this way, the board shall decide on the elevation of any sanction proceedings.
The inspections may also be carried out unannounced if this is required for the purpose of the inspection.
Ordinary inspections are charged at a rate of CHF 250 per hour plus expenses and cash expenditure (70 centimes per km; 80 centimes per copy) if they are carried out by an inspection agency accredited by SRO PolyReg (so-called internal inspection agency). The same applies to the rate of the independent investigators. The billing is done in units of 15 minutes.
Otherwise, the hourly rates charged are based on the guidelines of the (member-specific) auditors (see questions C.7 and D.6). PolyReg charges members who are inspected by their member-specific auditors a percentage of the total inspection costs as compensation for the expenses associated with the monitoring and supervision (fee schedule no. 6).
Established breaches by members against the association's duties or obligations under the AMLA and the Regulations, namely duties of due diligence (Art. 3-8 AMLA), duty to report (Art. 9 AMLA), training obligation (Art. 8 AMLA) are to be sanctioned (Art. 45 para. 1 of the Statutes).
In the case of negligently committed breaches, a warning may be issued instead of a fine or a sanction may be waived (§55 para. 2 of the Regulations). In the case of minor breaches, which can also be remedied in short-term (max. 30 days), no sanction proceedings shall be raised as a rule. However, an offending member shall be instructed in writing and given a deadline to remedy the breach.
The following sanctions may be imposed: Warning, fine of CHF 300.- up to 1'000'000.-, threat of exclusion and exclusion (§45 para. 2 of the Statutes and §54 para. 1 of the Regulations).
Intentional breaches shall in any case be punished by a fine. The sanctions may be accompanied by the imposition of investigation costs and the expenses for rulings and copying (§45 para. 4 and 5 of the Statutes).
Where necessary and possible, the sanction shall be combined with a request to restore the orderly and lawful situation within a maximum period of three months. The request may also be combined with instructions and requirements concerning the internal organisation of the financial intermediary (§54 para. 2 of the Regulations).
The assessment of a fine shall be based on the severity of the breach, the degree of fault and the economic capacity of the member. Parallel state measures and/or penalties do not prevent the internal sanction of the association. However, they shall be taken into account in a mitigating manner if the combination of penalties would be unreasonably harsh (§55 para. 1 of the Regulations).
Exclusion may be imposed in the event of breaches of the association's duties or obligations under the AMLA, the Regulations or the Statutes, if the offending member fails to restore the legal, regulatory or statutory situation within a set period of time or in the event of repeated breaches (§56 para. 1 of the Regulations).
A member will be excluded if it no longer fulfils the requirements for retaining membership (see question F.3), in particular – but not only – if it no longer offers any guarantee of proper business activity in terms of personnel or organisation and fails to restore the proper state of affairs within a set period of no more than three months (§56 para. 2 of the Regulations).
In §2 para. 2 of the Statutes, SRO PolyReg also requires its members to provide legally and ethically impeccable financial services of high quality. The legal irreproachability is assessed on the basis of the (expected) compliance with all laws and regulations relevant to the financial market. Breaches of such provisions may also lead to exclusion under certain circumstances.
A member must be excluded if it has breached important provisions of the AMLA, namely the duty to report, intentionally or through gross negligence (§56 para. 4 of the Regulations). Exclusion shall also be effected if the member can no longer be contacted by the association or the arbitration tribunal, or directly in the event of non-payment of outstanding debts owed to the association (see question F.5).
In any case of exclusion or threat of exclusion, additional financial penalties may be imposed (§56 para. 5 of the Regulations; see question H.3).
The procedure begins with the member being notified of the institution of the proceedings in writing (delivered by registered mail). The notification shall state the allegations and the possible sanction. In addition, the member is given a deadline to respond to all points (allegations, threatened sanction and its extent) in writing.
After receipt of the statement or after unused expiration of the deadline for the statement, the executive committee decides on the imposition of a sanction. In doing so, it shall take into account any arguments put forward by the member, which it however evaluates at its own discretion (see question H.7).
Once a decision has been made, the member shall be sent a written statement of the reasons for the decision by registered mail. All sanction decisions can subsequently be referred to the PolyReg Arbitration Court (§ 37 para. 1 of the Statutes and §59 of the Regulations). The Arbitration Court decides disputes between members and SRO PolyReg finally (see question D.13).
Appeals against exclusions, which have been pronounced due to non-payment of outstanding debts owed to the association following a registered reminder with threat of exclusion, shall only be dealt with by the Arbitration Court to a limited extent (cf. §36 para. 5 of the Statutes).
If sanction proceedings are brought against a member which could end in exclusion from SRO PolyReg, the decisions on the opening and conclusion of the proceedings shall be notified to FINMA (Art. 58 para. 1 of the Regulations).
If the proceedings are directed against a person subject to professional secrecy, the board delegation shall ensure that professional secrecy is maintained by appropriate means (anonymisation of documents, etc.) (§58 para. 2 of the Regulations).
The purpose of SRO PolyReg includes enforcing compliance with the due diligence obligations of the AMLA and, in addition, verifying whether its members provide legally and ethically impeccable financial services of high quality (cf. §2 para. 2 of the Statutes). This is in line with FINMA's consistent practice over many years, according to which the breach of other financial market regulations also calls into question the good reputation of the financial intermediary and thus the guarantee of compliance with the due diligence obligations.
SRO PolyReg does not exercise prudential supervision over its members and does not bring such supervision into play through the back door when it pursues breaches of §2 para. 2 of the Statutes. The sanction proceedings of SRO PolyReg and the measures based on them are primarily preventive in nature and aim primarily at restoring a proper state of affairs. Sanction proceedings of SRO PolyReg however do not have punitive character.
The principle of "in dubio pro reo" represents a rule in evaluating evidence for criminal court judges. However, decisive for the institution of sanction proceedings is the question whether there is sufficient initial suspicion. Then the case must be investigated officially by the board or the executive committee analogous to the provisions of administrative law (see art. 12 and 13 APA), and the decision to be made is based on the due conviction of the judging body. Therefore, the principle of "in dubio pro reo" does not apply (which does not apply for administrative proceedings any way, which results e contrario from art. 6 para. 2 ECHR), but rather that of the free assessment of evidence (in analogy with art. 19 APA in conjunction with art. 40 of the Federal Act of 4 December 1947 regarding the federal civil procedure BZP; SR 273).
Therefore, SRO PolyReg is not bound by certain rigid rules of evidence, which stipulate how it must arrive at its decisions, how a valid proof is established and what evidentiary value the individual pieces of evidence have in relation to each other (see BGE 130 II 482 E. 3.2; BVGE of 3 August 2007, C-1170/2006, E. 6.1).
In addition, sanction proceedings of SRO PolyReg take due account of the presumption of innocence and the principle of art. 8 of the Civil Code, since they maintain the guarantee of the right to be heard for the concerned parties and the decision of imposing sanctions or not is only made after the consideration of all evidence and produced arguments; furthermore, such decisions must – if necessary – be able to stand up to revision by the statutory Arbitration Court.
Thus, the institution of sanction proceedings does not constitute a prejudgement and does not violate the presumption of innocence. Its purpose is to demonstrate to the members in detail the accusations brought against them and to notify them of the possible sanction so that the members can avail themselves of their right to be heard.
After all, the principle of free consideration of evidence demands that the ruling body forms its opinion with due diligence, conscientiously and without prejudice as to whether the facts to be proven are considered true or not. Proof is established if the consideration of evidence leads to the conclusion that the legally relevant fact is real (BGE 114 II 289 E. 2a; BGE 105 Ib 114 E. 1a).
With regard to the evaluation of internal matters of a member, SRO PolyReg has the right to draw conclusions regarding unknown facts (result of presumption), based on known facts (base of presumption). Such factual presumptions can be made in all areas of the application of law, particularly in public law. They are probable conclusions, drawn by means of life experience (BGE 130 II 482 E. 3.2 with references; BVGE of 3 August 2007, C-1170/2006, E. 6.1).
In addition to sanctions, investigation costs and the expenses for rulings and copying can be imposed (§45 para. 4 and 5 of the Statutes). The calculation of the expenses for rulings is based on the provisions of the Court Fees Ordinance of the Cantonal High Court in Zurich of 8 September 2010.
The arbitration officer shall be responsible for directing the course of the proceedings up to the point at which the written grounds of appeal and the response to the appeal have been presented and the Arbitration Court has been constituted he subsequent conduct of the proceedings shall then be determined by the Court (§38 para. 3 of the Statutes). The then chosen arbitrators are independent of the association (non-members) and must have professional expertise.
In particular, the arbitration officer must set the relevant deadlines and warn the parties of the consequences of failing to meet them, as well as to collect the registration fee. The arbitration officer may dismiss or adjourn appeal proceedings for procedural reasons where the relevant grounds arise prior to the constitution of the Arbitration Court (for example, failure to present the grounds of appeal within the deadline, failure to pay the registration fee, withdrawal of the appeal, decision not to proceed with the appeal, review and simultaneous lifting of the disputed decision by the Board, bankruptcy of an appellant member, purposelessness, etc.). In such cases, the fees for the appeal proceedings and the adjudication of the process reimbursement may be waived or decided upon by the arbitration officer (§38 paragraph 2 of the statutes; see question H.13).
The procedure for arbitration is set out in detail in §38 of the Statutes.
An appeal to the Arbitration Court usually has a suspensive effect. This means that the sanction decision does not become legally binding until the Arbitration Court has reached a final decision.
In urgent cases, however, the Board may withdraw the suspensive effect of the appeal and take precautionary measures. Such orders of the Board shall be subject to (separate) review by a sole arbitrator, drawn by lot for this specific purpose (§12 para. 4 of the Statutes).
A withdrawal of the suspensive effect of an arbitration appeal against an exclusion decision has the effect that an excluded member must either cease its financial intermediary activities or join another SRO within two months.
In general, the suspensive effect is withdrawn in application of §12 para. 2 of the Statutes if an orderly supervision of the member to be excluded cannot or can no longer be considered guaranteed.
Among various conceivable situations, this is particularly to be feared if the member's activity runs counter to the requirements and provisions of the law, the Statutes and the Regulations and if, due to the fundamental nature of an identified irregularity, there is no prospect that a lawful state of affairs can be brought about within a useful period of time - be it, because this would force the member to cease its professional activity, or because the member evades the supervision of SRO PolyReg, for example by not allowing itself to be inspected, or because the member actively opposes instructions from SRO PolyReg, or because an activity which has already been recognised as unlawful elsewhere is being continued unlawfully in this country.
On the other hand, any appeal against the fixed amount of costs and fees always has a suspensive effect.
An appellant member shall, on demand by the arbitration officer, pay a registration fee as follows:
CHF 500.00, where only a fee is at issue;
CHF 1,000.00, where a sanction is at issue;
CHF 2,000.00, where non-admission/exclusion is disputed.
The Arbitration Court may, after it has been constituted, impose further deposit payments on an appellant member and, in the event of default, decide that the appeal be dismissed. The amount of the deposit shall be based on the estimated costs of the Arbitration Court and any disputed outstanding costs of the association. In the event of a default in payment of the registration fee or a further deposit, no grace period shall be granted (cf. §38 para. 7 of the Statutes).