4 concluded rulings from a single supervisor, each chosen because it makes one technical criterion concrete. Read the record, answer the questions, then check yourself against the model answers.
Why Switzerland, and why these four. FINMA publishes anonymised summaries of its concluded rulings every year under Art. 22(1) FINMASA — a supervisory record that is dated, permanent and re-derivable by any reader, which is what an exercise needs and what a live register can never be. The four here run from a purported cryptocurrency that turned out to be a deposit-taking business, through a confiscation, an individual ban, and a case whose entire outcome was a finding on paper.
The parties stay anonymous.These records are anonymised by the supervisor — “Bank X”, “A”. That anonymisation is preserved here and is not reversed by cross-referencing press releases or registers, even where it would be easy. These pages explain how supervision is constructed; they are not legal advice and cannot tell you whether any particular firm would be caught.
Read the finality line before the facts. 2 of these 4 rulings were not final when the supervisor published them — appeals were pending before the Federal Administrative Court. A ruling described as settled when it is under appeal is a misstatement about a real party, even an anonymised one. Every FINMA case report carries that line at its foot; it is the first thing to read, not the last.
TC 15.4 · 15.5intermediate
A cryptocurrency that was neither — and why banking law answered it
Ruling
FINMA, 2017-09-08
Published in
FINMA Enforcement Report 2017, case report 29
Parties
Verein X, Y AG, Z AG, and natural persons A, B, C and D (anonymised by FINMA)
Measures
Declaratory ruling (Art. 32 FINMASA); liquidation and opening of bankruptcy (Art. 37 FINMASA with Art. 33(1) Banking Act); publication of a prohibition against A and B for five years, against C for three years and against D for two years (Art. 34 FINMASA)
Check this first — not final as published
The ruling became final against Verein X, Y AG and Z AG. A, B and C challenged it — Federal Administrative Court proceedings B-5769/2017, with a discontinuance decision as to B at B-5780/2017 of 11 December 2017. As published, the ruling was expressly not final against the individuals. Anything said here about their position is what FINMA ruled, not a settled outcome.
An association and two companies ran an internet platform on which users could buy, sell and transfer what was presented as a cryptocurrency. The promoters described it as decentralised, fully transparent, and — unlike most other cryptocurrencies — backed by tangible assets: some 80% of the issue value was said to sit in an independent basket of precious metals, mainly silver and gold, and stable currencies. In 2016 and 2017 the group took in at least CHF 4 million from several hundred users. FINMA examined it and reached a conclusion about what the arrangement actually was.
FINMA found the group had accepted public deposits commercially without the required authorisation. What features of the arrangement made the users' money a deposit rather than a purchase of tokens?
The report records two independent findings that undercut the description of the product as a cryptocurrency. What were they, and why does the second one matter more than the first?
Four individuals received published prohibitions of five, three and two years. What does the graduation tell you about how the measure was set — and which FINMA power was being exercised?
A colleague cites this as authority that Swiss law treats crypto platforms as banks. What is wrong with that, and what would you have to check before citing the case at all?
TC 15.6 · 15.8advanced
CHF 1.33 million — but not a fine
Ruling
FINMA, 2018-01-17
Published in
FINMA Enforcement Report 2018, case report (Italian)
Final. The report records that FINMA's decision became final without appeal (*la decisione della FINMA è cresciuta in giudicato senza ricorso*). This one can be cited as concluded.
Over several years, a bank's business relationships connected to a well-known international corruption matter — involving, in the report's description, an oil company and a South American construction group — breached the money-laundering due-diligence duties gravely and repeatedly. The proceedings established that the bank had been unable to identify and monitor the elevated money-laundering risks attaching to most of the relationships and transactions tied to that matter. It had also breached its duty to report to MROS where there is reasonable suspicion of money laundering. FINMA imposed a declaratory ruling and confiscated CHF 1,330,000.
Is the CHF 1,330,000 a fine? Answer by reference to what Art. 35 FINMASA actually does.
Look at FINMA's supervisory toolkit as a whole. Which financial consequence can it impose on a supervised institution, and which can it not?
Technical criterion 15.6(b) says supervisors should have the power to 'impose a range of disciplinary and financial sanctions'. Criterion 15.8(a) says countries should have 'proportionate and dissuasive sanctions, whether criminal, civil or administrative'. Does Switzerland satisfy each?
The bank also breached the MROS reporting duty. Why is that limb worth separating from the due-diligence findings?
TC 15.8intermediate
The banker, not the bank — a three-year ban, under appeal
Ruling
FINMA, 2018-11-09
Published in
FINMA Enforcement Report 2018, case report 14
Parties
A, a member of senior staff at Bank X (anonymised by FINMA)
Measures
Professional ban for three years (Art. 33 FINMASA)
Check this first — not final as published
NOT final as published: *nicht rechtskräftig; Beschwerdeverfahren B-7186/2018* — an appeal was pending before the Federal Administrative Court. The ban is what FINMA ordered, not a concluded outcome, and any citation must say so.
Over a period of years, substantial sums carrying clear corruption and money-laundering risk moved through accounts at a bank. Despite plain warning signs, and without the clarifications that money-laundering law required being carried out, a member of the bank's senior staff repeatedly approved the opening of new accounts for customers from the group of clients under examination, and gave risk assessments FINMA described as untenable — assessments that did not reflect the risks and grounds for suspicion that existed. FINMA concluded that this individual bore decisive responsibility for the bank's serious breaches, and had thereby seriously breached supervisory law personally.
The measure runs against an individual, not the institution. Which criterion does that answer, and what exactly does it require?
FINMA identified breaches of arts 6 and 9 AMLA and of the organisational and fit-and-proper requirements. What is the difference between the two AMLA articles, on these facts?
What is the single most important thing to establish before citing this ruling — and where in the published report do you find it?
How would you write one sentence about this case for a client note, today?
TC 15.7 · 15.8starter
Told by a foreign prosecutor, and still no report — the lightest measure there is
Ruling
FINMA, 2018-05-22
Published in
FINMA Enforcement Report 2018, case report 4
Parties
Bank X (anonymised by FINMA)
Measures
Declaratory ruling (Art. 32 FINMASA)
Finality
Final. The report records that the ruling was not challenged and is final (*Die Verfügung wurde nicht angefochten und ist rechtskräftig*).
A bank maintained account relationships with offshore domiciliary companies whose beneficial owner was a person A. It wrongly failed to categorise those relationships as carrying elevated risk. A foreign criminal authority then informed the bank of criminal proceedings against A and of A's detention. The bank did not adequately discharge its clarification duty under art. 6 AMLA thereafter: in particular it did not dispel the suspicion that the assets deposited with it were of criminal origin, and it did not obtain additional information. FINMA found a breach of the reporting duty under art. 9 AMLA. The measure imposed was a declaratory ruling, and nothing else.
What did the bank actually know, and at what point did its clarification duty bite hardest?
The entire outcome is a declaratory ruling under Art. 32 FINMASA. What does that measure do?
Set this beside the CHF 1.33 million confiscation and the three-year professional ban in this pool. What determines where on that range a case lands?
Would this case help or hurt an argument that Switzerland's supervisory sanctions are dissuasive within technical criterion 15.8?