There is a long tradition of self-regulation in the areas for which FINMA is responsible, and self-regulation performs an important task for the financial centre. Self-regulation takes a variety of different forms. A distinction is made between voluntary or autonomous self-regulation, self-regulation that is recognised as a minimum standard and compulsory self-regulation based on a mandate from the legislator.
Voluntary or autonomous self-regulation is based solely on private autonomy and is by definition established without any government involvement (e.g. codes of conduct issued by professional associations). Under Art. 7 para. 3 of the
Financial Market Supervision Act FINMA may also, either at the request of a self-regulatory organisation or on its own initiative, recognise self-regulatory measures as a minimum standard (cf.
FINMA Circular 08/10 "Self-Regulation as a Minimum Standard"). Once recognised, such norms in principle no longer apply merely to members of the relevant self-regulatory organisation but must henceforth be observed as minimum standards by all other participants in the sector. Subsequent compliance with recognised minimum standards is enforced by FINMA or by the self-regulatory organisations. A list of currently recognised self-regulatory measures is included in the annex to
FINMA Circular 08/10 "Self-Regulation as a Minimum Standard".
Compulsory self-regulation is based on self-regulatory organisations receiving a mandate from the legislator to deal with a given topic through self-regulation. Regulatory mandates of this kind are contained in, for example, Art. 37h of the
Banking Act (deposit insurance),
Art. 4 para. 1 of the
Stock Exchange Act (appropriate organisation), Art. 4 para. 3 of the
Collective Investment Schemes Ordinance (requirements for simplified documentation on structured products) or Art. 25 of the
Anti-Money Laundering Act (specification of due diligence obligations). Compulsory self-regulation can also be recognised by FINMA where the legislator has not already stipulated that state approval is required. Recognition increases the legitimacy, effectiveness and credibility of such norms and contributes to self-regulation being perceived as an equal alternative to state regulation both in Switzerland and abroad.
FINMA encourages self-regulatory organisations to take certain regulatory principles into account when drawing up new rules, particularly if they are seeking to have them recognised. The Guidelines for financial market regulation (available in
German and
French) dated April 2010 provide valuable input in this regard. In particular, self-regulatory standards should be transparent and easily accessible, and those affected by regulation should have an appropriate say in its development. Proactive information exchange and coordination with all relevant authorities are also essential.
More on this topic (excluding insurance): Swiss Federal Banking Commission report “Self-regulation in the financial sector” (
report in German with summary in English) dated July 2007.