Database for assessing fitness and propriety requirements
Top management members at supervised institutions are subject to proper business conduct requirements under financial market law. SFMA collects the requisite data to assess compliance with these requirements.
- SFMA Ordinance on Data Processing
As well as ensuring top management’s compliance with financial market legislation, proper business conduct requirements are intended to preserve the general public’s trust in supervised institutions and the financial sector’s reputation. Proper business conduct extends to all character-related and professional factors which enable an office holder to manage a supervised institution correctly.
Database to monitor proper business conduct
SFMA’s supervisory activities yield information about individuals whose proper business conduct under the requirements of financial market law needs to be reviewed should the person assume a position subject to these requirements. SFMA manages a database to assess compliance with proper business conduct requirements under financial market law. To this end SFMA enters data in the database required in the event of a future assessment of compliance with proper business conduct. It manages the database to ensure that only individuals who meet the proper business conduct requirements are involved in the strategic or executive management of authorised institutions or hold qualified participations in them. The database contains information necessary to assess compliance with the proper business conduct requirements: information for identification: surname, first name, date of birth, gender, place of origin, nationality, mother tongue, address, email address, telephone number, OASI number; education and professional information: qualifications, further training, expertise, employer with UID and workplace; information concerning an individual’s financial situation, assets and insurance; extracts from commercial, debt enforcement, bankruptcy and criminal registers; reports, assessments and other documents issued by auditors and third parties appointed by SFMA; reports and decisions by supervisory, self-regulatory and professional organisations; criminal charges and criminal complaints launched by authorities; court decisions, decrees and other official documents; information about measures imposed under employment law, administrative law and criminal law; reports on internal audits and investigations of supervised institutions; a written admission of misconduct to an authority or a voluntary declaration; documentation relating to a person if it shows that despite there being indications that a supervisory breach has occurred, no SFMA proceedings can be launched against this person because they have absconded; written undertaking not to operate in an area supervised by SFMA either temporarily or permanently. SFMA’s database is based on Article 23 para. 1 and 2 let. d FINMASA and the SFMA Ordinance on Data Processing.
Informing those concerned about database entries
SFMA informs the person concerned in writing about initial database entries. Article 20 of the Data Protection Act (FADP) expressly remains reserved. SFMA can especially restrict, defer or waive notification of the person concerned under the prerequisites pursuant to Article 20 para. 3 FADP.
Compliance with proper business conduct requirements
SFMA reviews a person’s business conduct (fitness and propriety) if they are about to assume a specific role subject to the proper business conduct requirements. SFMA therefore recommends that a person informed about a database entry should contact SFMA in advance if they intend to assume a position subject to these requirements, or if they are applying for such a position and are not sure whether it is subject to these requirements. A person’s fitness and propriety have to be assessed within the context of the specific requirements and corporate function of a position at a given company as they could be suitable for one role but not for another. Requirements differ, for example, depending on whether the candidate is a member of the executive board or of the board of directors, a CEO, a company director or chair of the board of directors. The scope and nature of the future business activity and the size and complexity of the company in question must also be taken into account. If a person’s fitness and propriety are assessed, it can be done by means of enforcement proceedings. SFMA can instruct the supervised institution to remove the person from the position in question.