Commentaries: Art. 43

In order to implement the financial market acts, FINMA may itself carry out direct audits of supervised persons and entities abroad or have such audits carried out by audit agents.¹
It may permit foreign financial market supervisory authorities to carry out direct audits of supervised parties provided:
1. these authorities are responsible for the supervision of the audited supervised party as part of home country supervision or are responsible for supervising the activity of the audited supervised party in their territory; and
2. the conditions for administrative assistance set out in Article 42 paragraph 2 are fulfilled.²
Information may be collected through cross-border direct audits only if it is required for the supervisory activity of the foreign financial market supervisory authority. This includes in particular information on whether an institution throughout its group structure:
1. is appropriately organised;
2. records, limits and monitors in an appropriate manner the risks inherent in its business operations;
3. is managed by persons who guarantee proper business conduct;
4. fulfils the own funds and risk diversification regulations on a consolidated basis; and
5. properly complies with its reporting duties vis-à-vis the supervisory authorities.³
If during direct audits in Switzerland foreign financial market supervisory authorities wish to consult information linked directly or indirectly to the asset management, securities trading or deposit business for individual clients, FINMA shall collect this information itself and transmit it to the requesting authorities. The same applies to information which directly or indirectly relates to individual investors in collective investment schemes. Article 42a applies.⁴
FINMA may, for the purposes detailed in paragraph 3, allow the foreign financial market supervisory authority which is responsible for the consolidated supervision of the audited supervised party to consult a limited number of individual client dossiers. The dossiers must be selected randomly on the basis of predefined criteria.⁵
FINMA may accompany the foreign authorities responsible for financial market supervision on their direct audits in Switzerland or arrange for them to be accompanied by an audit company or an audit agent. The supervised persons and entities concerned may request such accompaniment.⁶
Establishments organised under Swiss law must provide the foreign financial market supervisory authorities and FINMA with the information required to carry out the direct audits or the information that FINMA requires to provide the administrative assistance, and must permit the inspection of their books.
Establishments are defined as:
1. subsidiaries, branch offices and representative offices of supervised persons and entities or of foreign institutions; and
2. other companies, provided their activity is included by a financial market supervisory authority in the consolidated supervision.

Amended by Annex No 13 of the Financial Market Infrastructure Act of 19 June 2015, in force since 1 Jan. 2016 (AS 2015 5339;BBl 2014 7483). ↩
Amended by Annex No 13 of the Financial Market Infrastructure Act of 19 June 2015, in force since 1 Jan. 2016 (AS 2015 5339;BBl 2014 7483). ↩
Amended by Annex No 13 of the Financial Market Infrastructure Act of 19 June 2015, in force since 1 Jan. 2016 (AS 2015 5339;BBl 2014 7483). ↩
Inserted by Annex No 13 of the Financial Market Infrastructure Act of 19 June 2015, in force since 1 Jan. 2016 (AS 2015 5339;BBl 2014 7483). ↩
Inserted by Annex No 13 of the Financial Market Infrastructure Act of 19 June 2015, in force since 1 Jan. 2016 (AS 2015 5339;BBl 2014 7483). ↩
Amended by Annex No 8 of the FA of 20 June 2014 (Consolidation of Oversight through Audit Companies), in force since 1. Jan. 2015 (AS 2014 4073;BBl 2013 6857). ↩

Art. 43

Footnotes

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