Description du poste

La newsletter de juin 2025 aborde la coopération internationale entre régulateurs. Une occasion d’explorer les implications pour le secteur financier.

Tâches

• Le SFAC a confirmé la pratique de FINMA concernant le transfert d’informations.

• La décision souligne les principes de spécialité et de confidentialité.

• FINMA peut partager des informations sous certaines conditions pour des enquêtes.

Compétences

• Les acteurs doivent respecter la réglementation sur la confidentialité des données.

• Compréhension des lois financières internationales.

• Capacité d’analyse des décisions juridiques et réglementaires.

Newsletter Banking & Finance
June 2025
International Administrative Assistance between Regulators – SFAC Confirms FINMA Practice
In a decision of 24 April 2025 (B-1427/2025), the Based on the aforementioned, the SFAC ruled that Swiss Federal Administrative Court (“SFAC”), FINMA’s transfer of information to BaFin did not was confronted with the question of whether the breach Swiss law and dismissed the appeal. Swiss Financial Market Supervisory Authority FINMA (“FINMA”) partook in a fishing expedition * * * * * by transmitting information to the German Federal Generally speaking, FINMA may transmit information Financial Supervisory Authority (“BaFin”). that is not publicly accessible to foreign financial market supervisory authorities, provided that:
BaFin contacted FINMA to request international administrative assistance, based on suspicions that (i) this information is used exclusively for the enforcement a German citizen had failed to submit the required of financial market law or is passed on to other voting rights notifications under German law. authorities, courts or bodies for this purpose (principle of speciality); and While the investor had submitted certain notifications, he had not disclosed that more than 50% of the (ii) the requesting authorities are bound by official shares had been transferred to accounts he held or professional secrecy, subject to the provisions at three banks – despite his individual shareholding on the publicity of proceedings and the provision remaining below the 3% threshold that would of information to the public on such proceedings trigger a reporting obligation. At that point, it remained (principle of confidentiality). In doing so, FINMA unclear how many shares had been transferred to shall consider the principle of proportionality (see whom, or whether some were still held in accounts below) and act swiftly. directly or indirectly linked to the complainant. Information that FINMA transmits to foreign authorities FINMA granted BaFin access to the lists of the investor’s on its own initiative or on request must therefore transactions at three banks, covering a period of serve one of the following purposes: approximately nine months, and issued a decision, • verification of compliance with the conditions which was notified to the investor. The investor of the license; appealed FINMA’s decision, arguing that there were
• ongoing monitoring of activities at branch or insufficient grounds for suspicion. In particular, he group level; claimed that the surveillance period did not correspond to the timeframe of the allegedly problematic transactions
• implementation of financial market legislation; and was, substantively, unrelated to the alleged
• verification of the need to withdraw the license; offenses. He further argued that the duration of the or surveillance was disproportionate, as it significantly
• monitoring the proper functioning of the financial exceeded the period during which the share transfers market and its systemic risks. had actually occurred.

According to the case law of the Federal Supreme The SFAC found that BaFin had initially communicated Court and the SFAC, international administrative sufficient grounds for suspicions to FINMA and and legal assistance must meet the principle of that the requested information was adequate to proportionality. This means only factual information establish how many shares were transferred and to relevant to the specific investigation should be whom. Additionally, none of the information provided shared. It is thus necessary for the request for by BaFin was blatantly false or contradictory. administrative assistance to demonstrate a sufficient Finally, the SFAC considered that the purpose of initial suspicion of a breach of financial market the communication was not only to verify whether supervisory law. If the requested documents lack a the investor had breached market conduct law, but clear connection to the alleged offense or are clearly also to check whether other persons were involved in such unsuitable to support the foreign investigation, breaches, hence, why the nine-month surveillance assistance may be denied. In such cases, the request period was deemed appropriate. The content of this newsletter is provided for information purposes 2, RUE DE JARGONNANT only and under no circumstances constitutes personalised legal or PO BOX 6045 · 1211 GENEVA 6, SWITZERLAND tax advice. +41 22 707 18 00
BOREL- BARBEY.CH

Newsletter Banking & Finance
June 2025
is considered overly broad or a “fishing expedition”, The requesting authority may present facts with which is not permissible. It is sufficient if at this some gaps or contradictions, as points that have stage there are only clues or abstract indications of so far remained unclear are to be clarified precisely a possible violation of financial market regulations on the basis of the receipt of the requested information and the information requested is not completely and documents. unrelated to the suspected irregularities. Clients of the supervised persons whose data is In a similar fashion, the transmission of information to be transmitted must be informed in advance. concerning persons who are manifestly uninvolved In this case, the Administrative Procedure Act applies. in the matter being investigated is not permitted. Clients may therefore lodge an appeal with the Nevertheless, in connection with the transmission SFAC against a decision by FINMA regarding the of data relating to bank accounts, the mere possibility transmission of their data, provided they have that an account is the subject of a breach of financial party status. market regulations is generally sufficient to exclude the status of the holders as “uninvolved third parties”, FINMA may exceptionally refrain from informing the even if they did not participate in the breach. This also clients concerned before transmitting the information if applies to the beneficial owners of the account the purpose of the administrative assistance and and its authorized signatories. the effective fulfilment of the requesting authority’s tasks would be compromised by prior notification. Furthermore, specific written evidence does not In such cases, the clients concerned shall be informed have to be submitted, as it is sufficient that the afterwards. requesting authority’s description of the facts is comprehensible and does not contain any obvious errors, gaps or contradictions. Should you require any further information on this subject, please do not hesitate to contact the authors or your usual contact person at Borel & Barbey. Our specialists will be pleased to assist you. Maria Oberlin-Chiriaeva
Julien Dayer
Partner
Associate E-Mail schreiben E-Mail schreiben The content of this newsletter is provided for information purposes 2, RUE DE JARGONNANT only and under no circumstances constitutes personalised legal or PO BOX 6045 · 1211 GENEVA 6, SWITZERLAND tax advice. +41 22 707 18 00
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