Changes to the articles of association or partnership agreements of banks and securities dealers, as well as their main regulations, must be authorised by FINMA. Branches of foreign banks and securities dealers only need to have their regulations authorised.
Articles of association and partnership agreements form the main legal basis of banks and securities dealers. Since they set out the key points regarding organisation and business activities, all changes to them must be authorised. Authorisation is also required for the main regulations, i.e. the rules governing organisation, business activities, the assignment of authorities and the various committees of the board of directors.
Material content decisive
The need for regulations to be authorised is based on their material scope, not their formal designation. If they concern organisation and business activities, they are relevant to supervisory law, and all changes must be authorised.
A registration certificate – and thus prior authorisation from FINMA – is needed to enter changes to articles of association in the Commercial Register. FINMA advises banks and securities dealers to submit first drafts of all planned changes to their articles of association or partnership agreement to it at the earliest possible stage before they are signed off by ultimate management. Changes to regulations, which are signed off by ultimate management for banks and securities dealers and normally by the parent company for branches of foreign banks and securities dealers, must also be submitted to FINMA in good time.
Review by FINMA
FINMA reviews the draft submitted. It usually asks the institution’s regulatory audit firm for its opinion and takes its comments and reservations into account in its assessment, but it is under no obligation to do so.
If FINMA has no objections to the changes, it authorises them in writing. This allows ultimate management to sign the changes off unconditionally, after which it must provide FINMA with a version bearing a legally binding signature together with the minutes of the sign-off.
FINMA issues a certificate for authorised changes to articles of association so that they can be entered in the Commercial Register and thus take effect.