FINSA and FINIA enter home stretch

Economic Affairs and Taxation Committee of the National Council (WAK-N) concludes consultations

The Economic Affairs and Taxation Committee of the National Council (WAK-N) has concluded its consultation on the Financial Services Act (FINSA) and the Financial Institutions Act (FINIA). This was communicated today in a media release. Accordingly, the bill will now be subject to consultation in the National Council in the fall session. As FINSA and FINIA have already been passed in the Council of States by the end of last year the bill now has to pass its last obstacle.

By and large the WAK-N conformed to the resolution of the Council of States in terms of content. Nevertheless, the WAK-N differed with the Council of States in certain points. With respect to the FINSA there were differences with respect to the conditions for the preparation of a prospectus, the liability for false details contained in the prospectus or the Key Information Document as well as the criminal provisions. With respect to the FINIA the WAK-N differed in particular as far as the provisions contained in the Annex are concerned. According to the resolution of the WAK-N the provision in the Banking Act (BA) contained in the Annex to FINIA should not be changed at all.

In certain points the members of the WAK-N could not reach an agreement. This concerned in particular the criminal provisions, the scope with respect to the insurance companies and the external asset managers.

The draft of the bill as resolved by the WAK-N will be available in due course.

Please do not hesitate to contact us.

Günther Dobrauz
Partner
Leader Legal FS Regulatory &
Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Tina Balzli
Director
Head Banking, Legal FS Regulatory and
Compliance Services
+41 58 792 15 54
tina.balzli@ch.pwc.com

Simon Schären
Manager
PwC Legal FS Regulatory and
Compliance Services
+41 58 792 14 63
simon.schaeren@ch.pwc.com

IRS defers effective date for section 871(m) regulations

On 4 August 2017, the Internal Revenue Service (IRS) and the US Department of the Treasury published Notice 2017-42 which defers the effective date for portions of the regulations under Section 871(m) of the Internal Revenue Code for another year. The Notice extends the relief provisions currently in effect under Notice 2016-76, Rev. Proc. 2017-15, and the 2017 Section 871(m) regulations. The Notice provides:

  • that transactions in-scope based on their delta through the end of 2018 are limited to ‘delta one’ transactions; as a result, transactions with a delta less than 1 but greater that .8 (delta .80 transactions) will not be in scope until 1 January 2019,
  • that the simplified combination rule will continue to apply for withholding agents until 31 December 2018,
  • for the deferral of withholding on actual and deemed dividends paid to qualified derivatives dealers (QDDs) until 1 January 2019 and
  • for the extension of the good faith periods for the implementation of Section 871(m).

PwC Observation: The deferral provided by Notice 2017-42 has been anticipated by market participants who have been struggling to implement the guidance issued at the end of 2016 and the beginning of 2017. In particular, the changes to the Qualified Intermediary (QI) Agreement applicable to QDDs have raised significant questions for issuers of financial products linked to US equities in the international financial markets.

For more information, please refer to our

PwC Tax Insights Publication

 

Should you have any further questions, please contact one of the following persons:

Christoph Schaerer
+41 58 792 4282
christoph.shaerer@ch.pwc.com

Melanie Taosuwan
+41 58 792 4249
melanie.taosuwan@ch.pwc.com

Thomas Plank
+41 58 792 4584
thomas.plank@ch.pwc.com

Synopsis of the most important regulatory developments in the banking and asset management industry

Status as of August 2017

The most important regulatory developments with comments to important aspects/changes and status:

  • Interdisciplinary issues
  • Banks/securities dealers
  • Fund management companies/investment funds/representatives of foreign collective investment schemes

Download

Contact

Bruno Gmür
Technical Partner Financial Services Banking
PwC Schweiz
+41 58 792 7317
bruno.gmuer@ch.pwc.com

How banks are gearing up for PSD2

With around five months to go, banks don’t have much time left
to make sure they’re compliant with the EU’s revised Payment
Services Directive (PSD2). However, for many financial institutions,
PSD2 is more than just a compliance exercise. It will impact
banks’ strategic positioning and significantly change their risk
profile as they interact with third parties.

Since Switzerland is not a member of the EEA, PSD2 isn’t directly
applicable in this country. But given that Switzerland is a member
of SEPA (the Single Euro Payments Area), in the future it will be
required to demonstrate that national rules similar to PSD2 are in
place. There will also be heavy pressure on Swiss banks from the
client side to open up their architecture vis-à-vis third parties.

PwC’s PSD2 team recently conducted a study across the Swiss and
European markets on banks’ readiness to tackle the new rules.
The survey ran from February to June this year, and 38 large
banks responded. The objective was to understand how much
progress regulators in each state had made in terms of transposing
PSD2 into national regulation, the state of play for banks in
relation to implementing PSD2, what opportunities banks felt
PSD2 offered them, and the impact that open data might have on
banks’ systems and infrastructures.

Results of Survey

Read more about PSD2

Get in contact with us:

Günther Dobrauz
Partner, Leader Legal FS
Regulatory & Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Michael Taschner
Senior Manager, Legal FS
Regulatory & Compliance Services
+41 58 792 10 87
michael.taschner@ch.pwc.com

Philipp Rosenauer
Manager, Legal FS
Regulatory & Compliance Services
+41 58 792 18 56
philipp.rosenauer@ch.pwc.com

Latest Level 3 ESMA Q&As related to MiFID II/MiFIR – July 2017

ESMA published and updated in the last couple of days additional Level 3 Q&A papers. Due to the specification and clarification purposes of the Level 3 papers, this should help you during the implementation phase and could clarify open questions. Please find the relevant ESMA Q&As from 7 July and 10 July 2017 listed below.

PwC provides you with this newsletter an overview of the latest questions related to the following topics:

  1. Investor protection and intermediaries topics (10 July 2017)
  • Best execution
  • Recording of telephone conversations and electronic communications
  1. Market structures topics (7 July 2017)
  • Direct Electronic Access (DEA) and algorithmic trading
  • Multilateral and bilateral systems
  • Access to CCPs and trading venues
  1. Data reporting (7 July 2017)
  • Field 14 and Field 17 – Total issued nominal amount
  • Field 30 – Quantity
  • Reference data for financial instrument
  • Transaction reporting
  • Order record keeping
  1. Commodity derivatives topics (7 July 2017)
  • Position limits
  • Position reporting

Read the whole article.

We are happy to discuss with you any thoughts and issues or are happy to review your solutions with regard to MiFID II and MiFIR.

Please do not hesitate to contact us.

Günther Dobrauz
Partner
Leader Legal FS Regulatory & Compliance Services
+41 58 792 14 97
guenther.dobrauz@ch.pwc.com

Michael Taschner
Senior Manager
PwC Legal FS Regulatory & Compliance Services
+41 58 792 23 25
michael.taschner@ch.pwc.com

Orkan Sahin
Senior
PwC Legal FS Regulatory & Compliance Services
+41 58 792 19 94
orkan.sahin@ch.pwc.com

Newsflash: The Swiss Federal Council has published some key amendments to the current version of the Swiss Financial Market Ordinance (FinfraV/FMIO)

The new regulations on initial and variation margins for OTC-derivatives, the platform trading obligation, the delayed recording and reporting obligation for securities dealers and foreign market participants, and the prolonged exemption for pension funds and investment funds for retirement.

The Swiss Federal Council has published some key amendments to the current version of the Swiss Financial Market Ordinance (FinfraV/FMIO) affecting a wide variety of market participants such as counterparties of OTC-derivatives, securities dealers, pension funds, and investment funds for retirement.

The new regulations on initial and variation margins for OTC-derivatives under the Swiss Financial Market Infrastructure Act FinfraV/FMIO will enter into force on the 1st of August 2017. The variation margin requirements under FinfraV/FMIO will enter into force on the 1st of September 2017 and will affect all counterparties to OTC-derivatives not being small non-financial counterparties (NFC-). The key new requirements under the new initial and variation margins regulations will be as follows:

  • The new regulations are much stronger aligned to the final initial and variation margin regulations under EMIR, the corresponding European regulation. The new Swiss regulations do however not impose an obligation to review the legal opinions applicable to OTC-contracts on an annual basis. This is a welcomed alleviation for the Swiss market participants.
  • It is now generally possible to re-use initial margins granted in the form of cash if they are held in custody with a third party custodian bank or a central bank.
  • It is now possible to change the method for the calculation of the initial margin in each derivative category also after a mutual agreement on such calculation has been achieved.
  • There will no mandatory haircut of 8% anymore if the variation margin paid in cash is not provided in the mutually agreed currency.
  • The obligation to exchange initial and variation margins for options on equity, indexes or similar equity derivatives will apply only beginning as of the 4th of January 2020.
  • Units in UCITS funds can now also be used for initial and variation margin purposes.
  • No initial margin must be provided anymore for the foreign exchange component of Cross Currency Swaps.
  • OTC-derivatives related to covered bonds are under certain conditions totally or at least partially exempted from the initial and variation margin obligation.

The platform trading obligation, that requires that certain specifically designated derivatives must be traded on a trading venue, has formally set in force. There is however currently no derivatives category that has been designated as subject to the trading obligation on a platform.

Another important alleviation for securities traders and foreign market participants at Swiss trading venues is the delayed entry into force of the recording and reporting obligations. These obligations will now only enter into force on the 1st of October 2018 for Swiss securities dealer. The transactions and orders that have occurred in between the 1st of January 2018 and the 30th of September 2018 will however have to be recorded and reported no later than until the 31st of December 2018 (“backloading”). The recording and reporting obligations will enter into force for foreign branches of Swiss securities dealers and foreign participants of Swiss trading venues as of the 1st of January 2019.

The exemption for pension funds and investment foundations for retirement from the clearing obligation has been extended until the 16th of August 2018.

Please do not hesitate to contact us for a free consultation on any of these new provisions.

Contact

Martin Liebi
Head Capital Markets
martin.liebi@ch.pwc.com
0041 76 341 65 43

New Swiss FinTech rules

Switzerland adopts revised banking regulations in order to facilitate the business activities of “FinTech” companies

On February 1, 2017 the Federal Council initiated a public consultation suggesting modifications to Swiss banking regulations. The purpose of the proposed revision was to create appropriate regulations for FinTech companies operating outside the traditional financial sector, taking into account the specific risk potential of their respective business models. The proposed revision included amendments to both the Banking Act (“BA”) and the Banking Ordinance (“BO”). The public consultation lasted until May 2017.

On July 5, 2017 the Federal Council finally adopted the new Swiss regulatory framework with regard to the BO. The new regime will formally enter into force on August 1st, 2017 so that FinTech companies will be able to benefit from these new rules as quickly as possible.

The amended rules provide for the following:

  1. Settlement account exemption: An exemption for settlement accounts will be created. This will allow companies to hold funds in a settlement account for 60 days without the operation of such account being deemed an acceptance of public funds subject to licensing under the BA (Art. 5 para 3 let. c BO). The BO in its current version did not contain a 60-day period of this kind, thereby creating some uncertainty.
     
  2. Innovation space (“sandbox”): Companies are allowed to hold public deposits of up to CHF 1 million without having to obtain a banking license (“sandbox”). Consequently, holding public funds of less than CHF 1 million does not qualify as “operating on a commercial basis”, which is a requirement in order to fall within the scope of the BA and the BO (Art. 6 para 2 let. a BO). According to the BO in its current version, taking public funds from more than 20 persons is deemed as “operating on a commercial basis”. Under the revised version of the BO, the number of persons providing funds is irrelevant as long as the threshold of CHF 1 million is not exceeded. Furthermore, the funds raised may neither be invested nor be subject to interest payments (Art. 6 para 2 let. b BO). Finally, the persons providing the funds must be informed that the respective business model is not subject to supervision by the Swiss Financial Market Supervisory Authority (FINMA) and that the rules on deposit insurance do not apply (Art. 6 para 2 let. c BO). This new innovation space will enable FinTech companies to try out experimental new business models without immediately having to obtain a banking license.

All in all, these innovative amendments to the BA and the BO will substantially facilitate the operation of FinTech business models in Switzerland. Moreover, the revision of the BA and the BO is further evidence of the Swiss government’s commitment to constantly improving and redesigning the regulatory environment in order to boost Switzerland as a major FinTech hub.

Your contacts:

Guenther Dobrauz
Partner|Leader PwC Legal Services Switzerland
Tel. +41 58 792 1497
guenther.dobrauz@ch.pwc.com

Tina Balzli
Director|Legal FS Regulatory & Compliance Services
Tel. +41 58 792 1554
tina.balzli@ch.pwc.com

Simon Schären
Manager |Legal FS Regulatory & Compliance Services
Tel. +41 58 792 1463
simon.schaeren@ch.pwc.com

Cooperation between PwC and Noveras Tax Reporting for international Banking Clients

PwC and Noveras Services AG have agreed to cooperate in providing offshore tax reports for banks located in Switzerland and in foreign countries. This cooperation results in the following benefits:

Benefits for Banks:

  • Able to offer truly country-specific, high-quality tax reports to clients
  • No need to build up and maintain tax reporting infrastructure
  • No need to follow tax laws around the world
  • Tax reporting provided even for small numbers of clients
  • Flexible, cost-efficient cooperation

Benefits for Clients:

  • Client receives a high-quality tax report for their offshore account
  • Reports deliver all of the necessary information for client’s tax return in their country
  • Overall lower costs for the client due to saving the expense of local tax support

Statement by the Leaders

  • This unique cooperation ensures several high-quality services (such as highly skilled tax reporting products).
  • The synergy between PwC as leading expert advisor in tax-related topics and a practice-oriented boutique with profound knowledge of wealth management / cross-border banking, IT and international tax law creates a unique market solution.

Find out more

Contact

Dieter Wirth
Partner
+41 58 792 4488
dieter.wirth@ch.pwc.com

Michael Taschner
Senior Manager
+41 58 792 1087
michael.taschner@ch.pwc.com

Swiss Federal Council Adopts Dispatch on AEOI with 41 Jurisdictions

On 16 June 2017, the Swiss Federal Council agreed to adopt the dispatch on the introduction of the Automatic Exchange of Information (“AEOI”) with 41 states and territories. Switzerland will activate the AEOI with each individual state/territory via specific federal decrees within the framework of this dispatch.

This dispatch strengthens Switzerland’s international position, as its AEOI network has extended to most of the G20 and OECD states, in addition to the already existing agreements with 38 states and territories, including all EU member states.

As part of this dispatch, collection of information will begin in 2018 for a first data exchange in 2019. Brazil, China, Liechtenstein, and Russia are notable states included within the list of 41 states and territories.

Please refer to the following link for the Swiss Federal Council’s official media release:

Englishhttps://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-67079.html
Germanhttps://www.admin.ch/gov/de/start/dokumentation/medienmitteilungen.msg-id-67079.html

Synopsis of the most important regulatory developments in the banking and asset management industry

Status as of June 2017

The most important regulatory developments with comments to important aspects/changes and status:

  • Interdisciplinary issues
  • Banks/securities dealers
  • Fund management companies/investment funds/representatives of foreign collective investment schemes

Download

Contact

Bruno Gmür
Technical Partner Financial Services Banking
PwC Schweiz
+41 58 792 7317
bruno.gmuer@ch.pwc.com