Key Benefits:
On 19 June 2015 (State 1 Er January 2016)
1 This Law regulates the organisation and operation of the infrastructures of the financial markets and lays down the rules of conduct of participants in the negotiation of securities and derivatives in those markets.
2 Its aim is to ensure the proper functioning and transparency of the securities and derivatives markets, as well as the stability of the financial system, the protection of participants in financial markets and the equal treatment of Investors.
For the purposes of this Law:
1 Are subject to art. 88 to 92, provided that they are not subject to the jurisdiction of the Federal Financial Market Supervisory Authority (FINMA) in respect of bankruptcy, as part of the individual supervision of the institution:
2 The Federal Council sets the criteria for assessing materiality.
3 FINMA refers to the companies of the significant group and maintains a directory of these companies. This directory is accessible to the public.
1 Any financial market infrastructure must obtain authorization from FINMA.
2 The operator of a payment system shall obtain an authorization from FINMA only if the operation of the financial markets or the protection of participants in the financial markets so requires and the payment system is not operated by a Bank.
3 The infrastructure of the financial markets operated by the Swiss National Bank (SNB) or its mandate shall not be subject to the requirement for authorisation or supervision of FINMA in connection with this activity.
4 Financial market infrastructure can only be entered on the commercial register once the authorization of FINMA has been granted.
A right to the authorisation of any person who fulfils the conditions laid down in this section and the additional conditions applicable to the various infrastructures of the financial markets.
In addition to the conditions set out in s. 5, systemically important financial market infrastructures (art. 22) must meet the requirements set out in section 2.
1 Financial market infrastructure informs FINMA of any changes to the underlying facts for the granting of approval or approval.
2 In the event of a significant change, it requires the prior approval or approval of FINMA in order to continue its activity.
3 This provision shall apply mutatis mutandis to the infrastructure of recognised foreign financial markets.
1 The financial market infrastructure must be a Swiss legal entity with its headquarters and principal administration in Switzerland.
2 It lays down appropriate business management rules and is organised in such a way as to be able to fulfil its legal obligations. In particular, it shall designate the body responsible for management on the one hand and the bodies responsible for senior management, supervision and control on the other hand, and shall specify their respective competences in such a way as to ensure that management is Appropriately and independently monitored. It regulates the tasks and competences of the bodies in the statutes and in the organisational regulations.
3 It identifies, measures, manages and monitors its risks and establishes an effective internal control system. In particular, it establishes an independent internal review body of the body responsible for management and a compliance monitoring body independent of the operational units.
1 The infrastructure of the financial markets and the people responsible for its administration and management must present all the guarantees of an irreproachable activity.
2 Those responsible for the administration and management of the financial markets infrastructure must also have a good reputation and have the professional qualifications required by the function.
3 The holders of qualified participation must also enjoy a good reputation and ensure that their influence is not exercised at the expense of sound and prudent management of the infrastructure.
4 Any person who holds, directly or indirectly, at least 10 % of the capital or voting rights of the financial market infrastructure or may, by any means, is deemed to have qualified participation in a financial market infrastructure Another way, to exert a significant influence on its management.
5 Any person who intends to acquire or transfer, directly or indirectly, a qualified participation within the meaning of para. 4 in an infrastructure of the financial markets organised in accordance with Swiss law is required to declare it prior to FINMA. This obligation also applies when a person intends to increase or decrease such participation and that the person reaches or exceeds the thresholds of 20, 33 or 50 % of the capital or voting rights, or falls below them.
6 The financial market infrastructure announces to FINMA those who meet the conditions of para. 5 as soon as she becomes aware of it. At least once a year, it must provide FINMA with the status of qualified participation holders.
1 A corporation can operate only one financial market infrastructure. The exploitation of a multilateral trading system by a scholarship is excepted from this rule.
2 The provision of ancillary services subject to authorization or approval under the financial market legislation referred to in s. 1 of the Act of 22 June 2007 on the supervision of financial markets 1 (financial market laws) must be authorized or approved by FINMA and must comply with the additional conditions of authorization.
3 Where the provision of ancillary services not subject to authorization or approval under financial market laws increases the risks of financial market infrastructure, FINMA may require the establishment of measures The creation of additional own funds and sufficient liquidity.
1 If the financial market infrastructure wants to outsource essential services such as risk management, it must first obtain the approval of FINMA. The SNB consults the SNB when it comes to a systemically important financial market infrastructure by the SNB.
2 Financial market infrastructure works with the service provider of the rights and obligations of both parties in written form.
3 When the financial market infrastructure outsource services, it remains responsible for compliance with the obligations under this Act.
1 Financial market infrastructure must fully liberate the minimum capital required.
2 The Federal Council shall determine the amount of the minimum capital.
1 Financial market infrastructure must have a strategy that, in the event of disruption, ensures the continuity or rapid resumption of its operations.
2 The infrastructure of financial markets which holds heritage values and the positions of participants shall provide for procedures for the transfer or settlement of such values and positions as soon as possible in the event of withdrawal or restitution of Authorization.
1 Financial market infrastructure operates computer systems that meet the following conditions:
2 It provides for measures to protect the integrity and confidentiality of information about participants and their transactions.
1 When a financial market infrastructure is part of a financial group, FINMA may make the granting of an authorisation conditional on the existence of adequate consolidated supervision by a financial market supervisory authority.
2 Two or more undertakings constitute a financial group within the meaning of this Law if the following conditions are met:
3 The provisions of the Act of 8 November 1934 on banks 1 Relating to financial groups shall apply mutatis mutandis.
1 The name of the financial market infrastructure must not be misleading or misleading.
2 The names "stock exchange", "multilateral trading system", "Multilateral Trading Facility", "MTF", "central counterparty", "Central Counterparty", "CCP", "Securities Settlement System", " Securities Settlement System "," SSS "," central depository "," Central Securities Depository "," CSD "," central repository "," Trade Repository "and" TR " shall designate, in the context of the provision of financial services, only the infrastructures of the financial markets Corresponding to this Act.
All financial market infrastructure informs FINMA in advance when it hears:
1 Financial market infrastructure provides free and non-discriminatory access to its services.
2 It can restrict access to its services:
Financial market infrastructure records the services provided, the procedures and processes applied, and the activities carried out and keeps these records for ten years.
Financial market infrastructure takes effective organizational measures to identify, prevent, resolve and monitor conflicts of interest.
1 The financial market infrastructure shall publish all essential information for participants, issuers and the public at regular intervals, including:
2 It takes account of recognised international standards in this field.
1 A central counterparty, a central depository, or a payment system is systemically important if it meets one of the following conditions:
2 An operational process for an infrastructure of financial markets referred to in para. 1 is systemically important if it meets the following conditions:
1 To cover the risks they pose to the stability of the financial system, the infrastructures of systemically important financial markets must meet special requirements.
2 The special requirements take into account recognized international standards. They may include contractual bases, means of payment used, risk management, business continuity and computer systems.
3 The SNB regulates the terms by way of an order.
4 The SNB may, after consulting with FINMA, free from the obligation to meet the special requirements of the infrastructures of systemically important financial markets whose registered office is abroad and which are subject to its own Monitoring under s. 19, para. 2, of the Act of 3 October 2003 on the National Bank (LBN) 1 :
1 The infrastructure of systemically important financial markets establishes a stabilization plan. It provides for measures to enable the financial markets infrastructure to sustain its stability in the event of a crisis in order to maintain its operational processes of systemic importance.
2 FINMA establishes a liquidation plan in which it sets out the modalities for the remediation or liquidation of an infrastructure of the systemically important financial markets that it has ordered. It consults the SNB on the liquidation plan.
3 The financial market infrastructure provides FINMA with the stabilization plan and information required to establish the liquidation plan.
4 It shall implement the measures provided for in the liquidation plan as a preparatory measure if the continued maintenance of the operational processes of systemic importance requires it.
1 FINMA informs the SNB of applications filed by central counterparties, central depositories and payment system operators.
2 After consulting with FINMA, the SNB designates, by decision, the infrastructures of systemically important financial markets and their operational processes of systemic importance within the meaning of s. 22. It also specifies, by decision-making, what special requirements within the meaning of s. 23 each of the infrastructures of systemically important financial markets must meet and verify whether they respect them.
3 If the infrastructure of systemically important financial markets meets the special requirements set, FINMA grants the authorization when the other conditions of authorization are also met.
4 FINMA approves the stabilization plan within the meaning of s. 24 after consultation with the SNB.
5 If the SNB concludes that a financial market infrastructure is not systemically important, it informs FINMA. If the general conditions of authorization are met, FINMA grants the authorization.
6 The procedure shall apply mutatis mutandis to requests for recognition by foreign central counterparties.
For the purposes of this Act:
1 The negotiating platform established under the supervision of FINMA its own regulatory and supervisory body; it must be adapted to its activity.
2 The tasks of regulating and supervising the negotiation delegated to the negotiating platform are carried out by independent bodies. The officers of these bodies must meet the following requirements:
3 The choice of persons referred to in para. 2 requires the approval of FINMA.
4 The trading platform submits its regulations and amendments to the approval of FINMA.
1 The negotiating platform lays down an organisation regulation which guarantees the order and transparency of the negotiations.
2 It shall record in chronological order all its orders and all the operations carried out within it as well as the operations which are brought to its knowledge. It indicates, in particular, the timing of the transaction, the identity of the participants, the securities negotiated, the number or nominal value of the participants, and their price.
1 The trading platform publishes the buying and selling prices of equities and other securities in real time and the importance of the negotiating positions expressed at these prices (pre-trade transparency).
2 It shall also ensure the immediate publication of information relating to transactions carried out within its borders and those carried out externally and brought to its knowledge, on all securities admitted to the negotiations (post-negotiation transparency). This information includes the price, volume and timing of transactions.
3 The Federal Council shall determine, taking into account the recognised international standards and the development of foreign law:
1 The trading platform which operates a technical system must have a negotiating system that guarantees an orderly negotiation even in the event of intense activity.
2 It takes effective measures to prevent disruption of its trading system.
1 The trading platform monitors the training of courses and the transactions carried out within it to be able to detect the exploitation of insider information, market and market manipulation and any other violation of the Legal or regulatory provisions. For this purpose, it shall also examine external transactions which have been reported to it or which have been brought in any other way to its knowledge.
2 In the event of suspected breaches of the law or other irregularities, the body responsible for monitoring the negotiation (negotiating body) shall inform the FINMA. If the violations of the law concern elements of an offence, it shall also immediately inform the competent criminal prosecution authority.
3 FINMA, the competent criminal prosecution authority, the Public Procurement Commission and the negotiating body shall exchange the information they need within the framework of their cooperation and to fulfil their Tasks. They can only use the information received to perform their respective tasks.
1 The Swiss supervisory bodies of different negotiating platforms contract the reciprocal and free exchange of data relating to the negotiation, provided that the negotiating platforms concerned:
2 They can only use the data received to perform their respective tasks.
3 Swiss supervisory bodies may agree on a reciprocal exchange of information with foreign supervisory bodies, provided that:
1 When a bursary suspends, on the initiative of the issuer or because of extraordinary circumstances, the negotiation of a security listed with it, it shall immediately publish its decision.
2 If the negotiation of a security is suspended, it shall also be suspended on all other trading platforms with which the security concerned is admitted.
1 The negotiating platform lays down a regulation on the admission, obligations and exclusion of participants, ensuring in particular the principle of equal treatment.
2 Can be admitted as participants in a scholarship or multilateral trading system:
1 The stock market enacts a settlement setting out the conditions for the admission of securities to trading, including the listing of securities.
2 The Regulation takes account of recognised international standards and, in particular, contains requirements on:
3 The award monitors compliance with the regulations and takes the penalties provided for in the event of an offence.
1 The multilateral trading system enacts a settlement on the admission of securities to trading. In particular, it determines the information that must be published so that investors can assess the characteristics of the securities and the quality of the issuer.
2 It monitors compliance with the regulation and takes the sanctions provided for in the event of an infringement.
1 The negotiating platform establishes an independent review body that can be seized:
2 It regulates the organisation of the appeal body and the procedure.
3 The organization, the rules of procedure and the appointment of the members of the appeal body require the approval of FINMA.
4 An action before the civil court may be instituted where the appeal proceedings have been completed.
Participants admitted to a trading platform shall record the orders and operations they carry out by indicating all the data necessary for monitoring and monitoring their activity.
1 Participants admitted to a trading platform are required to provide all the information necessary for transparency in the negotiation of securities.
2 FINMA determines the nature of the information, the recipient and the mode of communication.
3 The SNB is not required to declare in the course of carrying out its public duties.
1 FINMA grants authorisation to a foreign participant who wishes to take part in a Swiss negotiating platform but does not have a seat in Switzerland if:
2 FINMA may refuse to grant authorisation if the State in which the foreign participant has its seat does not grant Swiss participants effective access to its markets nor does it offer them the same conditions of competition as those granted to them. National participants. Any international divergent obligations shall be reserved.
3 A foreign participant who already takes part in a Swiss negotiating platform must inform FINMA if he wishes to take part in another Swiss negotiating platform. In this case, the foreign supervisory authority must certify that it has no objection to the extension of its activity in Switzerland.
4 Participation in monetary policy operations with the SNB does not require the authorization of FINMA.
1 Foreign-based trading platforms must obtain the recognition of FINMA before granting Swiss participants subject to FINMA surveillance direct access to their facilities.
2 FINMA grants recognition under the following conditions:
3 A foreign trading platform is deemed to be recognized when FINMA finds that:
4 FINMA may refuse to grant recognition if the State in which the foreign trading platform has its seat does not grant the Swiss trading platforms effective access to its markets nor does it offer them the same conditions of Competition with national trading platforms. Any international divergent obligations shall be reserved.
An organized system is defined as any organization engaged in:
1 Anyone who operates an organized trading system must obtain an authorization as a bank or a securities dealer or a recognition as a trading platform.
2 The operation of an organised trading system within a financial group shall not be subject to authorisation if it is insured by a legal person who is:
Anyone who operates an organized trading system must:
1 Anyone who operates a structured negotiation system ensures that the system guarantees an orderly negotiation even in the event of intense activity.
2 It takes effective measures to prevent disruptions to its trading system.
1 Anyone who operates a trading system ensures the publication of information about transactions in the system, including the price, volume and timing of transactions.
2 The Federal Council regulates, taking into account the recognised international standards and the development of foreign law, the derogations from the obligation to publish this information in particular with regard to transactions with a volume Important or performed by the SNB.
3 The Federal Council may, taking account of recognised international standards, extend the obligation of publication to pre-negotiation transparency.
1 The Federal Council may issue provisions which derogate from this Law in order to take account of the specificities of the market in electricity derivatives for the purposes of trade in electricity derivatives and for the negotiation of such exchanges. Electricity, and in particular to protect the public interest by ensuring the security of electricity supply.
2 It may authorize FINMA to enact, with the Electricity Commission, provisions in areas of limited scope, particularly in technical areas.
Central counterparty refers to any organisation based on common rules and procedures that interposes between counterparties in a securities transaction or another financial instrument contract, thereby becoming the buyer To any seller and seller to any buyer.
1 The central counterparty requires adequate guarantees from its participants, in particular in the form of initial margins ( Initial margins ), variable margins ( Variation margins ) And contributions to the default fund ( Default fund ).
2 These guarantees must be calculated at least in such a way that:
3 The central counterparty accepts only liquid guarantees with low credit and market risks. It assesses safeguards with caution.
1 The central counterparty and its participants respect their mutual payment obligations by transferring overnight deposits held to a central bank.
2 If this is not possible or impractical, they use a means of payment that involves only low credit and liquidity risks. The central counterpart reduces these risks to a minimum and constantly monitors them.
1 The central counterparty has, on an individual basis and on a consolidated basis, an adequate volume of own funds and allocates its risks appropriately.
2 The Federal Council shall determine the amount of capital according to the activity and the risks and determine the requirements for the allocation of risks.
1 The central counterparty has sufficient liquidity to:
2 It can only place its financial resources in liquid or liquid financial instruments with low market and credit risk.
1 The central counterparty provides for measures to limit credit and liquidity risks in the event of a participant's default.
2 It uses guarantees and own funds to cover losses in the event of a participant's default in the following order:
3 It regulates the terms of coverage of larger losses. It cannot perform the following actions:
1 The central counterpart separates:
2 It offers its participants the opportunity to:
1 The central counterparty ensures that in the event of a participant's default the guarantees, claims and commitments held by the participant on behalf of an indirect participant can be transmitted to another participant designated by the participant Indirect.
2 A participant is deemed to have failed:
1 Central counterparties may conclude agreements on interoperable compensation for financial transactions (interoperability agreements).
2 A central counterparty is required to accept the request of another central counterparty for the conclusion of an interoperability agreement, unless the conclusion of such an agreement jeopardising the safety and effectiveness of the compensation.
1 The conclusion of an interoperability agreement is subject to the approval of FINMA.
2 The interoperability agreement is approved under the following conditions:
3 If a central counterparty to the interoperability agreement is systemically important, FINMA shall seek the agreement of the SNB before granting its approval.
4 If a central counterpart participating in the interoperability agreement extends its activity to a new trading platform without new risks, the interoperability agreement does not require further approval.
Participants in a central counterparty who make central consideration available to indirect participants shall publish the price of the services they provide in relation to the compensation.
1 The participant in a central counterparty separates in its accounts and in those held with the central counterparty its own assets, claims and liabilities of the collateral, claims and liabilities of the indirect participants.
2 It gives indirect participants the opportunity to choose between collective segregation of customers and individual segregation per client.
3 If an indirect participant opts for individual segregation per customer, the participant must deposit any margin above the requirements of the indirect participant with the central counterparty, separately from the margin Other indirect participants.
4 The participant in a central counterparty shall make public the costs and the particularities of the level of protection conferred by the type of account management within the meaning of para. 2.
1 A central counterpart having its seat abroad must obtain the recognition of FINMA before:
2 FINMA grants recognition under the following conditions:
3 FINMA may refuse to grant recognition if the State in which the central counterparty has its headquarters does not grant the Swiss central counterparties effective access to its markets nor does it offer them the same conditions of competition as those To national central counterparties. Any international divergent obligations shall be reserved.
4 It may exempt foreign central counterparties from the obligation to obtain recognition provided that this does not prejudice the purpose of protection covered by this Law.
1 A central depository is the operator of a central depository or securities settlement system.
2 A central depositary body is defined as an organisation which ensures the central preservation of securities and other financial instruments under common rules and procedures.
3 A securities settlement system is defined as an organization that compensates and regulates securities transactions and other financial instruments under common rules and procedures.
1 The central depository shall ensure proper storage, accounting and transfer of securities in accordance with the law.
2 It prohibits its participants from taking any higher levies on the securities accounts for which it is the central depository.
3 It checks daily that the number of securities issued to the issuer by a issuer corresponds to the number entered in the accounts of the participants.
4 It sets the time at which:
5 It transfers the securities if possible in real time, and no later than the end of the value day.
1 The central depository shall determine the time limits in which participants must settle their securities transactions in the system. In so doing, it takes into account, inter alia, the international uses and the needs of its participants.
2 It allows its participants to settle the transactions in a timely manner.
3 It ensures that transactions are completed within the specified time frame. It will take the sanctions under contract if operations are settled out of time.
1 The central depository shall cover by appropriate measures the risks arising from the granting of a credit.
2 It accepts only liquid guarantees with low credit and market risks. It assesses safeguards prudently.
1 The central depository makes it possible to settle payments in connection with securities held or recorded at home by transferring overnight deposits held with a central bank.
2 If this is not possible or impractical, it uses a means of payment that has no risk or low credit and liquidity risks. It reduces these risks to a minimum and constantly monitors them.
1 The central depository shall have, on an individual basis and on a consolidated basis, an adequate volume of own funds and shall allocate its risks appropriately.
2 The Federal Council shall determine the amount of own funds according to the activity and the risks and determine the requirements for the allocation of risks.
1 The central depository has sufficient liquidity to:
2 It can only place its financial resources in liquid or liquid financial instruments with low market and credit risk.
The central depository provides measures to limit credit and liquidity risks in the event of a participant's default.
1 The central depository separates:
2 It offers its participants the opportunity to:
Linkages are defined as central depositories:
1 The establishment of the following links between central depositories requires the approval of FINMA:
2 Approval is granted if the central depositories meet the following conditions:
3 If a central depository participating in the liaison between central depositories is systemically important, FINMA must obtain the agreement of the SNB before giving its approval.
The link-making facility under which a central repository provides the other central repository of services that it also provides to other participants must be reported to FINMA.
1 The participant of a central depository separates in its accounts and in those held with the central depository its own assets, claims and liabilities of guarantees, claims and liabilities of the indirect participants.
2 It gives indirect participants the opportunity to choose between collective segregation of customers and individual segregation per client.
3 If an indirect participant opts for individual segregation per customer, the participant shall deposit any margin above the requirements of the indirect participant with the central depository, separately from the margin of the Other indirect participants.
4 The participant of a central depository shall make public the costs and the particularities of the level of protection conferred by the type of account management within the meaning of para. 2.
A central repository is any organization that centrally collects, manages and maintains data on derivative transactions that have been reported to it under s. 104.
The central repository records the reported data and keeps it for at least 10 years from the date of the contract.
1 The central repository publishes regularly and in aggregate form and anonymized, on the basis of the data reported, the open positions, the volume of transactions and the values according to the categories of derivatives.
2 It can publish other data if it is aggregated and anonymized.
1 The central repository guarantees the following authorities free access to the data they need to perform their tasks:
2 The Federal Council rules, taking into account recognised international standards, access to data concerning transactions of central banks.
1 The central repository guarantees a foreign financial market supervisory authority free access to the data it needs to carry out its tasks, provided that a cooperation agreement between the supervisory authorities Swiss and foreign competent authorities confirm that the following conditions are met:
2 The Federal Council rules, taking into account recognised international standards, access to data concerning transactions of central banks.
1 A central repository having its seat abroad must obtain the recognition of FINMA before accepting any declaration within the meaning of Art. 104.
2 FINMA grants recognition under the following conditions:
3 A central repository is deemed to be recognized when FINMA finds that:
4 FINMA may refuse to grant recognition if the state in which the central repository has its headquarters does not grant the Swiss central repositories effective access to its markets nor does it offer them the same conditions of competition as those Granted to national central repositories. Any international divergent obligations shall be reserved.
A payment system is defined as any organization based on common rules and procedures used to offset and settle payment obligations.
The Federal Council may impose specific obligations on payment systems, in particular with regard to own funds, the allocation of risks and liquidity, if the implementation of recognised international standards requires it. The competence of the SNB, as referred to in Art. 23, relating to the setting of special requirements concerning payment systems of systemic importance is reserved.
1 FINMA is the supervisory authority. Systems of systemically important financial markets are also subject to the oversight of the SNB.
2 FINMA monitors compliance with conditions of authorization and obligations, provided this is not the responsibility of the SNB for the monitoring of special requirements within the meaning of s. 23.
3 FINMA and the SNB jointly carry out their supervisory activities on the infrastructures of systemically important financial markets, regularly exchange information and avoid duplication in the performance of their tasks. In collaboration with foreign supervisory authorities, they coordinate the exercise of their obligations and harmonise their communication.
1 Financial market infrastructures and financial groups shall appoint an audit firm approved by the Federal Supervisory Authority for review in accordance with Art. 9 A , para. 1, LSR 1 , to perform an audit under s. 24 LFINMA 2 .
2 They shall have their annual accounts reviewed and, where appropriate, their consolidated accounts by a revision undertaking subject to the supervision of the State, in accordance with the principles of ordinary supervision provided for in the Code of Obligations (CO) 3 .
3 FINMA can conduct direct audits of financial market infrastructures.
To ensure the application of s. 9, para. 3 and 5, FINMA may suspend the exercise of voting rights attached to shares or shares held by qualified participants.
1 The financial market infrastructure that intends to return an authorisation shall submit a liquidation plan to FINMA for approval.
2 The plan of liquidation shall contain information on:
3 A financial market infrastructure is released from the surveillance of FINMA when it has fulfilled the obligations set out in the liquidation plan.
1 In addition to art. 37 LFINMA 1 , FINMA may revoke the authorization or recognition of financial market infrastructure if:
2 The withdrawal of the authorisation shall result in the dissolution of the legal person. FINMA appoints the liquidator and supervises the liquidator's activity. The insolvency provisions of Chapter 8 are reserved.
1 Art. 24-37 and 37 D At 37 G Of the Act of 8 November 1934 on banks 1 Shall apply by analogy to the infrastructure of financial markets, except as otherwise provided in this Law.
2 In the event of the insolvency of a systemically important financial market infrastructure, FINMA consults with the SNB before taking any action.
1 FINMA shall inform, as far as possible and to the extent that they are concerned, central counterparties, central depositories and payment system operators in Switzerland and abroad of the measures applicable in the case of That it intends to take against a participant and which limits its authority to dispose of it; it also informs them of the precise timing of the entry into force of the measures.
2 The orders given to a central counterparty, to a central depository or to a payment system by a participant against which a measure applicable in the event of insolvency has been taken shall be legally valid and enforceable against third parties in one The following cases:
3 L' al. 2 is applicable if one of the following conditions is met:
4 L' al. 2 shall apply by analogy:
1 The measures applicable in the event of insolvency ordered against a participant of a central consideration are excluded from the agreements entered into in advance between the central counterparty and the participant, which relate to:
2 After compensation or realization by the central counterparty under para. 1, let. A and b, the participant's remaining claims are distracted for the benefit of its clients and indirect participants.
3 The contrary measures ordered by FINMA in the context of deferment of termination of contracts are reserved.
1 The measures applicable in the event of insolvency ordered against an indirect participant of a central counterparty shall be excluded from the agreements concluded previously under Art. 90, para. 1, let. A to c, between the participant and the indirect participant.
2 After compensation or realization by the participant in accordance with Art. 90, para. 1, let. A and b, the remaining claims of the indirect participant are distracted for the benefit of its clients and indirect participants.
3 The s. 1 and 2 also apply where measures applicable in the event of insolvency are taken against the indirect participant of another indirect participant.
4 The contrary measures ordered by FINMA in the context of deferment of termination of contracts are reserved.
When FINMA defers the termination of contracts and the exercise of rights to terminate these contracts, it takes into account the consequences on the financial markets and ensures that the reliable and orderly functioning of the contracts is not compromised. The infrastructure concerned, its participants and the other infrastructure of the financial markets linked to it.
1 This Chapter shall be applicable subject to the following provisions to the financial counterparties and non-financial counterparties that have their registered office in Switzerland.
2 The following are deemed financial consideration:
3 Non-financial counterparties are deemed to be non-financial counterparties.
4 The following organizations are only subject to the obligation to report under s. 104:
5 The Federal Council may subject Swiss branches of foreign participants to financial markets to the provisions of this Chapter if they are not subject to any equivalent regulation.
1 This Chapter does not apply to:
2 The Federal Council may, for reasons of proportionality and in the light of recognised international standards, totally or partially exclude other public organisations or participants in the financial markets from the scope of the Chapter.
3 Are not considered derivatives within the meaning of this Chapter:
4 The Federal Council may exempt derivatives from the provisions of this Chapter if this corresponds to recognized international standards.
The obligations under this Chapter are also deemed to be met if:
Counterparties shall be permitted to exchange all data necessary for the immediate fulfilment of the obligations of this Chapter with the companies of their group and their branches established abroad.
1 Counterparties must compensate by means of a central counterparty that is authorized or recognized by FINMA for derivative transactions under s. 101 achieved without going through a trading platform (OTC derivatives transactions).
2 This obligation does not apply to transactions with small counterparties or to transactions between such parties.
3 A counterparty may consider that the statement of its consideration concerning its characteristics is correct, in the absence of contradictory evidence.
4 To complete the obligation under s. 112, the Federal Council may order that all derivative transactions carried out on a trading platform or on an organised trading system be offset by a central counterparty authorised or recognised by FINMA.
5 FINMA may, in certain cases, authorize the clearing of transactions by an unrecognized central counterparty, provided that it is not prejudicial to the purpose of protection under this Act.
1 A non-financial consideration is considered to be small when all of its gross average mobile positions, calculated over a period of 30 working days, for transactions on OTC derivatives are less than Applicable thresholds.
2 If one of the average gross positions calculated in accordance with para. 1 of a small non-financial consideration exceeds the threshold, that consideration will no longer be considered to be small at the end of a period of four months from the date of the overrun.
3 Derivative transactions intended to reduce risks directly related to the commercial activities or the management of the cash or capital of the counterparty or group shall not be taken into account in the calculation of the gross position Average.
1 A financial contribution is considered small when its average mobile average position, calculated over a period of 30 working days, for all transactions on OTC derivatives is below the applicable threshold.
2 If the average gross position referred to in para. 1 of an existing small financial contribution exceeds the threshold, that consideration will no longer be regarded as small at the end of a period of four months from the date of the overrun.
1 The thresholds for the average gross position of transactions on OTC derivatives in the course of non-financial consideration are set according to the categories of derivatives.
2 A single threshold is applicable to the average gross position of all transactions on OTC derivatives in the course of a financial contribution.
3 If the counterparty is part of a consolidated group by global integration, all transactions on over-the-counter OTC derivatives entered into by the counterparty or by another counterparty are taken into account in the calculation of the position Average gross.
4 The Federal Council determines:
1 FINMA determines which derivatives are to be offset by a central counterparty. In doing so, it takes into account:
2 It takes into account recognised international standards and the development of foreign law. The introduction of the obligation to compensate by category of derivatives may be staggered over time.
3 Not subject to the obligation to compensate:
The obligation to offset by a central counterparty also applies where the foreign counterparty of a Swiss counterpart subject to that obligation is subject to the obligation to compensate if it had its registered office in Switzerland.
Derivative transactions shall not be offset by a central counterparty in the following cases:
1 Derivative transactions must be reported to one of the central repositories licensed or recognized by FINMA.
2 The following are required to declare:
3 In the event of an operation between non-financial counterparties, para. 2, let. B and c shall apply mutatis mutandis. An operation between small non-financial counterparties should not be reported.
4 In the case of central clearing of the transaction, the declaration shall be provided by the central counterparty. If a recognized foreign central counterparty does not provide the return, counterparties do so.
5 Third parties may be requested to make the declaration.
6 If there is no central repository, the Federal Council shall indicate the body to which the declaration should be addressed.
1 The declaration must be made no later than the working day following the conclusion, modification or termination of the derivative transaction.
2 For each operation, must be at least reported:
3 The Federal Council may provide for the declaration of other indications; it shall define the format of the declaration.
4 Statements made to a recognized foreign central repository may include other indications. If these consist of personal data, the consent of the data subject is necessary.
1 Transactions involving OTC derivatives that are not to be offset by a central counterparty authorized or recognized by FINMA are subject to the obligations set out in this section.
2 These obligations do not apply to:
3 The Federal Council may, for reasons of proportionality and in accordance with recognised international standards, exempt or partially exempt other operations.
Counterparties record, observe and reduce operational risks and counterparty risks associated with derivative transactions referred to in s. 107, para. 1. In particular:
1 Counterparties assess derivatives each day at market prices.
2 This obligation does not apply to transactions with small counterparties.
3 Where market conditions do not permit an evaluation at market price, evaluation shall be carried out using valuation models. These models must be appropriate and recognized in practice.
4 Non-financial counterparties may solicit third parties to conduct the assessment.
1 Counterparties, with the exception of small non-financial counterparties, exchange appropriate collateral.
2 They must be able to properly separate the guarantees of their own assets.
3 Any agreement concerning the valuation of will on the basis of guarantees exchanged under para. 1 whose value can be determined objectively remains valid, including whether the guarantor is the subject of a forced enforcement procedure or of measures applicable in the event of insolvency.
4 The Federal Council shall lay down the requirements for the exchange of guarantees.
The exchange of guarantees is not necessary in the following cases:
1 Counterparties negotiate all transactions on derivatives within the meaning of s. 113 on:
2 This obligation does not apply to transactions with small counterparties or to transactions between them.
1 FINMA determines which derivatives are to be negotiated on a platform or trading system referred to in s. 112, para. 1. In doing so, it takes into account:
2 It takes into account recognised international standards and the development of foreign law. It may extend over time the introduction of the obligation to negotiate on a platform or trading system by category of derivatives.
3 Not subject to the obligation under s. 112:
The obligation to negotiate derivative transactions in accordance with s. 112 also applies where the foreign counterparty of a Swiss counterparty subject to that obligation would be subject to it if it had its registered office in Switzerland.
The obligation under s. 112 does not apply in the following cases:
1 Review bodies within the meaning of s. 727 and 727 A CO 1 Verify, as part of their review, that counterparties comply with the provisions of this Chapter.
2 Auditing of taxable persons is governed by the laws on financial markets.
3 The provisions relating to the supervision and supervision of old-age pensions, survivors and invalidity shall be reserved for the contrary.
1 Audit companies report to FINMA.
2 If a review body finds any breach of the obligations of this Chapter, it shall fulfil the obligations of a notice referred to in s. 728 C , para. 1 and 2, CO 1 .
3 If the company so denounced fails to take the necessary measures, the review body shall declare the offence to the Federal Department of Finance.
1 The Federal Council may set limits on the size of a net position that a person may hold on the raw material derivatives, provided that this is necessary for an orderly listing and an effective regulation, as well as Convergence between the prices of raw materials derivatives and the prices of raw materials on the spot market. It takes into account internationally recognized standards and the development of foreign law.
2 The Federal Council fixes, for the limits of positions:
3 FINMA sets the position limits for the various raw material derivatives.
1 The negotiating platform monitors open positions for the application of position limits. It may require each participant to:
2 L' al. 1 applies by analogy to operators of organized trading systems and their customers.
1 Any person who, directly, indirectly or in concert with third parties, acquires or disposes of shares or rights in respect of the acquisition or disposition of shares of a company having its registered office in Switzerland and of which at least part of the shares of Participating are listed in Switzerland or a company having its registered office abroad, of which at least one part of the shares are listed in Switzerland as the principal, and the participation of which, as a result of that operation, reached or crossed, Up or down, the thresholds of 3, 5, 10, 15, 20, 25, 33rd, 50 or 6650 % of voting rights, which can be Or not, must report it to the corporation and the stock exchanges with which the equity shares are listed.
2 Financial intermediaries who acquire or dispose of shares or rights in respect of the acquisition or disposition of shares shall not be subject to this obligation.
3 It is also subject to the obligation to declare any person who is free to exercise the right to vote in respect of shares under par 1.
4 The following are considered to be acquisition or disposal:
5 It also constitutes an indirect acquisition of any process which, in the end, may confer the right to vote on the relevant shares. Exclusions are granted exclusively for the purpose of representation at a general meeting.
Any group organised on the basis of a convention or in any other way shall be subject, as a group, to the obligation to declare under Art. 120 and shall indicate:
If the company or the stock exchanges have reason to believe that a shareholder has failed to comply with its obligation to declare, they shall inform the FINMA.
1 FINMA lays down provisions on:
2 FINMA may, for fair reasons, provide for exemptions or relief in respect of the obligation to declare or publish, in particular for:
3 A person who intends to acquire securities may ask FINMA to rule on his or her obligation to declare.
The company must publish the information received relating to changes in the percentage of voting rights.
1 The provisions of this Chapter and Art. 163 apply to public offerings relating to corporate holdings (covered corporations):
2 To the extent that Swiss law and foreign law apply simultaneously to a takeover bid, it is possible not to apply the provisions of Swiss law if the following conditions are met:
3 Before their shares are listed on the stock exchange under the conditions set out in para. 1, corporations may provide in their articles of association that an offeror is not required to make a public offer of acquisition pursuant to s. 135 and 163.
4 A company may, at any time in its statutes, provide a provision corresponding to para. 3, in so far as it does not result in injury to shareholders within the meaning of s. 706 CO 1 .
1 After consulting the stock exchanges, FINMA establishes a Public Procurement Commission (Commission). It consists of experts representing traders, listed companies and investors. The organisation and procedure of the committee are subject to the approval of FINMA.
2 The provisions enacted by the Commission under this Act require the approval of FINMA.
3 The Commission monitors compliance with the provisions applicable to takeover bids.
4 She reports on her activity once a year to FINMA.
5 The commission may collect emoluments from persons who are party to the takeover procedure. The Federal Council fixes the emoluments. In so doing, it takes into account the value of the transactions and the degree of difficulty of the procedure.
6 The grants shall bear the costs of the committee which are not covered by the fees.
1 The offeror presents the offer with the publication of a prospectus, which must contain accurate and complete information.
2 It treats all holders of equity in the same category on an equal footing.
3 The Offeror's obligations extend to any person acting in concert with the Offeror.
1 The Offeror shall submit the offer, prior to its publication, to the control of an audit firm approved by the Federal Supervisory Authority for review in accordance with Art. 9 A , para. 1, LSR 1 Or a dealer.
2 The supervisory body shall check whether the offer complies with the law and the implementing provisions.
The seller may withdraw from a contract or cancel a sale already carried out if such acts have been concluded or carried out on the basis of a prohibited offer.
1 The offeror publishes the result of the offer at the expiration of the offer period.
2 If the conditions of the offer are met, the Offeror extends the period of the offer for the owners of the equity holders who have not yet accepted it.
The Commission shall make additional provisions on:
1 The board of directors of the offeror corporation (s. 125, para. 1) address to owners of equity holders a report in which they take a position on the offer. The information in the report must be accurate and complete. The board of directors of the offeror publishes the report.
2 Between the publication of the offer and the publication of its result, the board of directors of the offeror company cannot make decisions on legal acts which would have the effect of significantly altering the assets or liabilities of the company. Decisions taken by the General Assembly shall not be subject to this limitation and may be executed irrespective of whether they have been adopted before or after the publication of the tender.
3 The Commission shall make provisions on:
1 In the case of competing bids, the owners of the participating securities of the offeror company must be able to choose one freely.
2 The Commission shall lay down provisions on competing offers and their effects on the first offer.
1 The offeror or any person who, directly, indirectly or in concert with third parties, holds an interest of at least 3 % of the voting rights, which may or may not be exercised, of the offeror corporation or, where applicable, of another corporation Shares are offered in exchange to be reported to the commission and to the stock exchanges where the securities are quoted, upon publication of the offer and until its expiration, any acquisition or disposition of the shares of that company.
2 Groups organised on the basis of a convention or in another way are subject to this obligation to declare only as a group.
3 The Commission may submit to the same obligation any person who, upon publication of the offer and until its expiry, acquires or alienates, directly, indirectly or in concert with third parties, a certain percentage of shares The offeror corporation or another corporation whose equity is offered in exchange.
4 If the company or the stock exchanges have reason to believe that a holding owner has failed to comply with its obligation to declare, they shall inform the committee thereof.
5 The Commission shall make provisions on the extent, form and timing of the declaration and on the determining percentage for the application of para. 3.
1 Any person who, directly, indirectly or in concert with third parties, acquires equity securities that, in addition to those held by him, enable him to exceed the threshold of 33rd % of the voting rights, exercable or not, of the offeror corporation Must submit an offer for all the listed shares of that company. The companies concerned may raise the threshold up to 49 % of the voting rights in their statutes.
2 The price offered must be at least equal to the greater of:
3 If the corporation has issued several classes of equity, the relationship between the prices offered for these different categories must be reasonable.
4 FINMA lays down provisions on the obligation to submit an offer. The committee is empowered to submit proposals.
5 Where sufficient evidence suggests that a person is not fulfilling his or her obligation to submit an offer, the Commission may take the following steps until the situation has been clarified and, if so, until the Person fulfilled his obligation:
1 The Commission may, in justified cases, grant a derogation from the obligation to submit an offer, in particular where:
2 The obligation to present an offer disappears when the voting rights have been acquired by way of gift, succession, estate sharing, under the matrimonial regime or in a forced execution procedure.
1 If the offeror holds, upon expiry of the offer, more than 98 % of the voting rights of the offeror company, he may, within three months, apply to the court for the cancellation of the remaining shares. To that end, he must take action against the company. Other shareholders may participate in the proceedings.
2 The company reissues these shareholdings and presents them to the offeror, against payment of the amount of the offer or the execution of the offer of exchange in favour of the owners of the cancelled securities.
1 The Commission shall take the decisions necessary for the application of this Chapter and its implementing provisions and shall monitor compliance with the legal and regulatory provisions. It may publish its decisions.
2 Persons and corporations subject to the obligation to report under s. 134, as well as persons and corporations that may be party under s. 139 , Al. 2 and 3, have the obligation to provide the Commission with all the information and documents necessary to carry out its tasks.
3 When the Commission learns that infringements of this chapter or other irregularities have been committed, it shall ensure the restoration of the legal order and the elimination of irregularities.
4 When the commission learns that crimes and offences of common law or offences under this Act have been committed, it shall immediately inform the competent criminal prosecution authorities.
1 The Act of 20 December 1968 on administrative procedure 1 Applies to proceedings before the Commission, subject to the following exceptions.
2 As a party to the bid procedure:
3 Shareholders holding at least 3 % of the voting rights, whether exercised or not, of the offeror company shall also be party to the proceedings if they so require before the Commission.
4 The statutory provisions on public holidays do not apply to the procedures for a takeover in the committee.
5 The filing of appeals and other applications by fax or electronic means shall be permitted in correspondence with the Commission and recognised as regards compliance with time limits.
1 The decisions of the Commission may be appealed to FINMA within five days of the award.
2 The appeal to FINMA shall be in writing and shall be reasoned. The Commission then transmits its records to FINMA.
3 Art. 139, para. 1, 4 and 5, applies to the appeal proceedings before FINMA.
1 The decisions of FINMA for takeover bids may be appealed to the Federal Administrative Tribunal in accordance with the Act of 17 June 2005 on the Federal Administrative Tribunal 1 .
2 The appeal must be filed within 10 days of notification of the decision. It has no suspensive effect.
3 The statutory provisions relating to public holidays do not apply to takeover procedures before the Federal Administrative Tribunal.
1 Acts in an unlawful manner any person who, with insider information, knows or must know that the insider information is an insider's information, or a recommendation that it knows or must know is based on insider information:
2 The Federal Council shall lay down provisions concerning the lawful use of insider information, in particular in relation to the following:
1 Acts unlawfully any person who:
2 The Federal Council shall lay down provisions concerning lawful conduct, in particular in relation to the following:
Where there is sufficient evidence to suggest that a person does not comply with his or her obligation to report within the meaning of s. 120 and 121, FINMA may take the following steps until the situation has been clarified and, where applicable, until the person has fulfilled its obligation:
The monitoring instruments provided for in s. 29, para. 1, 30, 32, 34 and 35, LFINMA 1 Are applicable to any person who violates s. 120, 121, 124, 142 or 143 of this Act.
Persons subject to an obligation to declare under s. 134 or may be a party under s. 139 , Al. 2 and 3, have the obligation to provide FINMA with all the information and documents necessary to carry out its tasks.
1 A person shall be punished with a custodial sentence of up to three years or of a pecuniary penalty, wilfully:
2 Every person who obtains for himself or for a third party a pecuniary benefit by committing an act described in para. shall be punished with a penalty of deprivation of liberty for up to five years. 1, let a or c.
3 If the author acts by negligence, he shall be punished with a pecuniary penalty of up to 180 days.
4 The breach of professional secrecy remains punishable even as the burden, employment or practice of the profession has ended.
5 The provisions of the federal and cantonal legislation on the obligations to inform the authority and to give evidence in court are reserved.
A fine of up to 500 000 francs is imposed on anyone, intentionally:
A fine of up to 500 000 francs is imposed on anyone, intentionally:
A fine of up to 100 000 francs is imposed on anyone, intentionally:
1 A fine of up to 10 million francs is imposed on anyone, intentionally:
2 If the author acts by negligence, he shall be punished by a fine of not more than 100 000 francs.
A fine of up to 10 million francs is imposed on anyone who, intentionally, does not submit to an enforceable decision in recognition of the obligation to submit an offer (art. 135).
1 A fine of up to 500 000 francs is imposed on anyone, intentionally:
2 If the author acts by negligence, he shall be punished by a fine of not more than 150,000 francs.
1 Every person who, as an organ or as a member of a governing or supervisory body of a transmitter or a company controlling the issuer or controlled by the issuer or controlled by the issuer, is punished with a custodial sentence of three years or more. That person, or as a person who has access to insider information because of his or her participation or activity, obtains for himself or for a third party a pecuniary benefit by using insider information as follows:
2 Every person who obtains a pecuniary benefit of more than 1 million francs by committing an act referred to in para. shall be punished by deprivation of liberty for five years or a pecuniary penalty. 1.
3 Every person who obtains for himself or a third party a pecuniary benefit by exploiting insider information or a recommendation based on that information shall be punished with a penalty of one year's deprivation of liberty or a pecuniary penalty Has communicated or given one of the persons referred to in para. 1, or acquired by a crime or an offence, in order to acquire or dispose of securities admitted to trading on a trading platform in Switzerland, or to use derivatives relating to those securities.
4 Any person who is not covered by s is liable to a fine. 1 to 3, obtains for itself or for a third party a pecuniary benefit by exploiting insider information or a recommendation based on that information in order to acquire or dispose of securities admitted to trading on a Negotiation platform in Switzerland, or the use of derivatives relating to these values.
1 A person shall be punished with a custodial sentence of up to three years or a pecuniary penalty for the purpose of substantially influencing the course of securities admitted to trading on a trading platform in Switzerland in order to obtain For himself or for a third party a pecuniary benefit:
2 Every person who obtains a pecuniary benefit of more than 1 million francs by committing an act referred to in para. shall be punished by deprivation of liberty for five years or a pecuniary penalty. 1.
1 The prosecution and judgment of the authors of the acts referred to in Art. 154 and 155 are under federal jurisdiction. The delegation to the cantonal authorities of the powers of prosecution and judgment is excluded.
2 The prosecution and judgment of the authors of the acts referred to in Art. 147 lies with the cantons.
1 Financial market infrastructures which have, at the time of entry into force of this Law, an authorisation or recognition must file a new application for authorisation or recognition within a period of one year to After the coming into force of this Act. The authorisation or recognition procedure is limited to examining the new requirements. Infrastructure can continue until the decision on their application is made.
2 The infrastructures of the financial markets which will be subject to this Law shall be announced to FINMA within six months of its entry into force. They shall comply with the requirements of this Law within one year of its entry into force and shall file an application for authorisation or recognition. They are allowed to continue their activity until the decision on authorization or recognition is rendered.
3 In some cases, FINMA may extend the time limits set out in paras. 1 and 2.
Foreign participants in a trading platform who, at the time of entry into force of this Act, have an authorization from FINMA as a foreign member of a scholarship do not need any new authorization. They shall comply with the requirements of this Law within one year of its entry into force.
The interoperability agreements existing at the time of entry into force of this Law shall not be subject to further approval by FINMA.
The Federal Council shall determine which derivative transactions still open at the time of entry into force of this Law shall be subject to the obligation to declare and reduce the risks.
1 Any person who, 1 Er February 1997, held directly, indirectly or in concert with third parties, confers shares of more than 33,000 per cent, but less than 50 % of the voting rights of a offeror corporation, must, if it acquires equity shares Exceeding the threshold of 50 % of voting rights, submit an offer for all the listed shares of that company.
2 L' al. 1 also applies to interests that are Er May 2013, were not governed by the provisions relating to takeover bids.
1 This Law shall be subject to the referendum.
2 The Federal Council shall fix the date of entry into force, subject to para. 3.
3 It does not bring into force art. 112-115 (obligation to negotiate on a trading platform or a structured negotiation system) only if the international context so requires.
1 RS 101
2 FF 2014 7235
3 ACF of Nov. 25, 2015
4 The mod. Can be viewed at RO 2015 5339 .
