The Swiss Federal Council published the draft law and the related message concerning the planned revision of the Anti-Money Laundering Act (AMLA) on 26 June 2019 after the consultation period ended. In comparison to the FDF’s consultation draft (also read our previous article), only a few but significant changes were made.
Extended circle of addressees subject to the Anti Money Laundering Act: For persons now also subject to the AMLA (especially service providers), complying with the AMLA requirements will most likely be a book with seven seals. The efforts needed to implement the new requirements as well as the contractual amendments should not be taken lightly.
Verifying the information on the beneficial owner: In practice, many financial intermediaries already now collect background information on their clients, including the beneficial owners, and perform investigations that go beyond the mere determination of the beneficial owner. However, what has changed, is that the amended AMLA provisions now explicitly enshrine this concept, which is why it may be necessary to determine whether currently used procedures actually meet the new requirements. Concerning the level of diligence required, the legal text refers to the circumstances. In practice, however, it remains to be seen from which point on the financial intermediary may assume that enough has been done to ensure this information and how real-life difficulties, such as the lack of independent sources to verify information, will be handled.
Constant updating of client data: The anti-money regulations already now implicitly state that business relationships have to be reviewed periodically. However, up to now, such a review consisted mostly of checking doubtful information. Going forward, the duty will also extend to reviewing the veracity of all client information. In regard to the frequency, the scope and the type of review, the draft law refers to the risk that the contractual party poses. As a result, financial intermediaries will have to review their existing control mechanisms and think how they can smoothly integrate the new requirements into these. Financial intermediaries should also analyze to what degree client data has to be updated already during transactions monitoring.
Retention of the right to report: Most of the opinions on the consultation draft were against eliminating the right to report. As a result, both the duty as well as the right to report were retained. In order to fulfill the FATF recommendation on the legal clarification of the relationship between the two concepts, the AMLO will have to define the term “justified suspicion” in more detail. The expected wording should mainly reflect established jurisprudence, according to which a suspicion exists if investigations pursuant to Article 6(2) AMLA cannot dispel these. From a material point of view, there will thus be no significant changes for financial intermediaries. Nonetheless, the relevant deadlines (see above) will have to be integrated into the processes.
Based on the currently available information, the new law will not enter into force before 2021. For financial intermediaries and other actors who may now also become subject to the revised law (e.g. service providers), it may make sense to begin a timely analysis of business activities and possible implications in regard to AMLA in order to meet the deadlines for implementing the new law. Especially the following questions could be of relevance: