Rs 955.071 Order Of 18 November 2009 On The Activity Of Financial Intermediary Exercised Professionally (Oif)

Original Language Title: RS 955.071 Ordonnance du 18 novembre 2009 sur l’activité d’intermédiaire financier exercée à titre professionnel (OIF)

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[955.071] order on the activity of financial intermediary exercised professionally (OIF) of November 18, 2009 (Status January 1, 2010) the Swiss federal Council, see art. 41 of the Act of 10 October 1997 on money laundering (LBA), stop: Section 1 provisions general art. 1 scope and field of application material this order sets out the criteria that a person be considered as a financial intermediary within the meaning of art. 2, al. 3, LBA. It defines the requirements for the professional character of financial intermediation.
Are not considered financial intermediation: a. the physical transportation or the physical conservation of heritage values, subject to art. 6, al. 1, let. c; b. debt collection; (c) the transfer of assets ancillary as complementary to a main contract delivery; d. operation of pension funds of the pillar 3A by banking or insurance foundations; e. the activity between the companies of a group; (f) the activity of the auxiliary to financial intermediaries holders of an authorization or affiliated with a self-regulatory in Switzerland If they meet the following conditions: 1. they must be carefully chosen by the financial intermediary and be subject to instructions and controls of the latter, 2. they are integrated into the organizational measures of the financial intermediary aimed at preventing money laundering and the financing of terrorism provided for in art. 8 LBA and receive initial training and continuous training in this area, 3. they may act in the name and for the account of the financial intermediary, 4. they must be paid by the financial intermediary, and not by the final customer, 5. they exercise the activity of transfer of funds or assets for a financial intermediary authorized or affiliated, 6. They concluded with the financial intermediary an agreement in writing on the above conditions.

Art. 2 territorial scope this order applies: a. financial intermediaries who have their headquarters in Switzerland, even if they provide their financial services only abroad; b. to branches of financial intermediaries who have their headquarters abroad: 1. who are entered in the register of trade in Switzerland or who are de facto branches, and2. in Switzerland, employing persons who, professionally, conclude business for financial intermediaries in Switzerland or from the Switzerland or hire legally.

It does not apply to financial intermediaries who have their headquarters abroad, carry out cross-border activities of financial intermediation and not binding on Switzerland of the staff from abroad only on a temporary basis for some operations.

Section 2 financial intermediation activities art. 3 credit operations (art. 2, al. 3, let. a, LBA) are not considered as credit operations: a. the activity of the borrower; b. credit without payment of interest or other charges; c. the granting of credits between company and partner, when partner has a holding of at least 10% of the capital or of the voting power in the company; d. lending between employer and employees When the employer is required to pay social contributions to employees participating in the credit relationship; e. relationships of credit between people close according to art. 7, al. 5; f. the provision of credit, whether it is incidental to another legal act; g. operational leasing; h. the contingent liabilities to third parties; i. the trade finance, when the refund is not made by the other party.

Art. 4 services in the field of the payment (art. 2, para. 3, let. b, LBA) there is service in the field of payment in particular when the financial intermediary: a. on behalf of the other party, transfers liquid financial securities to a third party and himself physically takes possession of these values, makes credit on its own account or orders a transfer in the name and on behalf of the other party; (b) issues or managing means of payment No liquids which the other party uses to pay others; c. operates transmissions of funds or assets.

Transfer of funds or of values refers to the transfer of assets which is to accept cash, cheques or other instruments of payment, and then pay the equivalent amount in cash or cashless using a transmission, transfer or any other use of a system of payment or compensation.

Art. 5 trading activity (art. 2, para. 3, let. c, LBA) there are trading business especially when the financial intermediary practice on behalf of a Contracting Party the purchase and the sale of banknotes, coins, currency or banking metals as well as change.
Are also considered to be a trading activity: a. trading for own account of common currencies and banknotes which have courses; b. trading on behalf of thirds of raw materials which intervenes in the stock market, as well as one who is not a scholarship, as long as the raw materials reach a degree of commonality so high that they can be liquidated at any time; c. the trading for own account of banking metals.

The securities trading is considered as a trading activity when it is carried out by traders in securities within the meaning of the Act of March 24, 1995 on the stock exchanges.
Exchange ancillary activity is not considered to be a trading activity.

RS 954.1 art. 6. other activities (art. 2, para. 3, let. e to g, LBA) are also considered financial intermediation: a. management of securities and financial instruments to a Contracting Party; b. execution, as an investment advisor, mandates isolated on behalf of third parties; (c) conservation and, if necessary, the management of securities to a counterparty; d. activity of organ of domiciliary companies.

Home companies are considered legal entities, companies, institutions, foundations, trusts, trust companies and similar constructions, who do not exercise a trade or manufacturing activity, or other activity carried on in the commercial form.

Section 3 activity as a professional art. 7 General criteria a financial intermediary operates on a professional basis therefore that it: a. realized gross proceeds of more than 20,000 francs during a calendar year; (b) establishes business relations not limited to a single activity with more than 20 Contracting Parties during a year civil or maintains at least 20 relationships of this type during a calendar year; c. has a power of disposition for an unlimited period on assets belonging to third parties where the amount exceeds 5 million francs at one point; d. performs transactions with total volume more than 2 million francs a year calendar.

The influx of heritage values and reinvestment within the same repository are not factored in the calculation of the volume of transactions referred to in para. 1, let. d. for the bilateral contracts, only the consideration provided by the other party is taken into consideration.
The activity of financial intermediary for institutions or persons under art. 2, al. 4, LBA is not taken into consideration during the assessment to determine if the activity is carried out at professional or not.
Exercised financial intermediary activity for close people is taken into consideration for the assessment to determine if it is exercised on a professional basis as if the gross realized during a calendar year is greater than 20,000 francs.
Are considered to be people close: a. parents and allies in the direct line; b. relatives in collateral line up to the third degree; c. people with which the financial intermediary has contracted a marriage or a registered partnership, even if there is a later divorce or judicial dissolution; (d) the joint heirs until the close of sharing the inheritance; e. the conscripts and the substitutes of the legatee in the sense of art. 488 of the civil code.

SR 210 art. 8 operations of credit credit operations are performed on a professional basis: a. If these operations allow to realize a gross more than 250 000 francs a year civil, etb. If the volume of appropriations exceeds 5 million francs at one point.

To determine the gross product of credit operations, take into account all the inflow of funds related to operations, after deduction of the amounts intended for the repayment of the credit.
If a person is simultaneously credit operations and another activity of financial intermediation, the two areas of activity must be considered independently of the other to determine if they are exercised in a professional capacity. If the criteria are met in a field of activity, the activity is considered as being carried in a professional capacity in both areas.

Art. 9 transfer of funds or of values

The transfer of funds or of values is always considered as being carried on a professional basis, subject to art. 7, al. 4 art. 10 activity of trading for the trading business, the decisive criterion is gross income instead of the gross product mentioned in art. 7, al. 1, let. a. art. 11 passage to the activity of financial intermediary professionally anyone who passes an activity of financial intermediary to non-professional title in a professional activity must: a. immediately the obligations referred to in art. 3 to 11 of the LBA, etb. within a period of two months after the change in status, have obtained membership of a self-regulatory body or have submitted an application for authorization to pursue the activity as a professional with the federal regulator of financial markets (FINMA).

As long as they are not affiliated with a self-regulatory body, or the authorisation by FINMA, these financial intermediaries are prohibited: a. to conclude new business of financial intermediation; b. to perform under the existing business relationships, acts that are not absolutely necessary for the conservation of heritage.

Section 4 provisions final art. 12 implementing provisions the FINMA is authorized to stop the implementing provisions of this order.

Art. 13 repeal of the law in force the order of the federal supervisory authority of financial markets of 20 August 2002 on financial intermediary activity exercised in a professional capacity within the meaning of the Act on money laundering is repealed.

[RO 2002 2687, I 6 c 2006 1359, 2008 5613.]

Art. 14 entry into force this order comes into force on January 1, 2010.

RO 2009 6403 RS 955.0 State on January 1, 2010

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