As part of the implementation of the Financial Services Act (FinSA) and the Financial Institutions Act (FinIA), FINMA has revised several circulars, including Circular 2018/03 Outsourcing Banks & Insurers (the “Circular”). From 1 January 2021, the Circular will also apply to selected financial institutions under the FinIA, i.e. fund management companies, managers of collective assets as well as self-managed investment companies with variable capital (SICAV). With the extension of the Circular’s scope, FINMA has eliminated a longstanding regulatory uncertainty: In the past, the Outsourcing Circular was regularly applied analogously to fund management companies and asset managers in certain constellations – particularly in the context of a banking or insurance group.
The inclusion of the above financial institutions is a logical consequence and practical implementation of the level playing field that FinSA and FinIA have created regarding outsourcing. Previously, the requirements for delegation of material tasks (e.g. portfolio management) of fund management companies and managers of collective assets were outlined in the CISO-FINMA and not – formally – specified in the Outsourcing circular. With the entry into force of the FinIA, the delegation of tasks is uniformly and comprehensively regulated for all financial institutions, i.e. the same rules now apply for fund management companies, managers of collective investments, SICAVs and securities firms.
The extension of the scope of application thereby furthers an level playing field, promotes clarity and benefits the newly covered institutions, even if the implementation may mean a considerable additional effort. But why should this additional effort not be lamented, but rather welcomed?