Following a decision by the Federal Supreme Court, the Swiss Financial Market Supervisory Authority FINMA has discontinued proceedings to impose its supervision on six cantonal building insurers that have expanded their activities beyond the scope of their monopoly.
At the start of 2012, FINMA initiated proceedings against several cantonal building insurers. While it accepted that these public-law institutions also offer insurance that falls outside the scope of their traditional monopoly (natural disasters, fire, etc.), it concluded that such private-law insurance activity must only be carried out under FINMA's supervision. FINMA believed that the nature of the legal relationship, i.e. the service itself, is decisive in determining whether or not an institution is subject to the Insurance Supervision Act (ISA).
In its decision dated 3 July 2012 (no. 2C_485/2010) in the matter of glarnerSach, the Federal Supreme Court concluded that cantonal building insurers may also offer insurance other than that covered by their monopoly (e.g. liability or legal expenses) without violating federal law. The court ruled that the decisive criterion is the legal personality of the insurer, not the service: if the cantonal insurer is a public-law institution, it is not to be made subject to the ISA and thus does not require supervision by FINMA. According to the court, the existing regime of supervision at the cantonal level is sufficient and comparable to that at the federal level, as a result of which there is no distortion of competition. The court also stated that shared supervision of the same insurer, as has been the case for some time in the field of supplementary health insurance, "does not make sense" in this instance.
The Federal Supreme Court’s decision rules out any responsibility on FINMA's part for the supervision of public-law insurers. FINMA is therefore discontinuing all pending proceedings against cantonal building insurers.
Christina Bürgi, Deputy Media Spokesperson, +41 (0)31 327 91 71, firstname.lastname@example.org