FIDLEG ombudsman's office: FINMA should clarify the transitional regulation
Since the introduction of the FIDLEG and FINIG at the beginning of this year, financial institutions have been required to join an ombudsman's office. The transitional regulation for joining an ombudsman's office is as follows:
Art. 93 para. 2 FINIV
Financial institutions that provide financial services under the FIDLEG must join the ombudsman's office no later than six months after the Federal Department of Finance has recognised or established an ombudsman's office for them under Article 84 FIDLEG. The deadline is met when the application is submitted.
"It would hardly be in the interest of the ombudsman's offices to affiliate financial institutions for only six months"
According to a FINMA press release, the first ombudsman institutions were recognised by the Federal Department of Finance (FDF) on 24 June 2020. Due to the six-month transition period, the financial institutions concerned now have until Christmas Eve (24 December 2020) to join an ombudsman institution. A list of the recognised ombudsman institutions can be found here.
As already announced in a previous news article(FIDLEG Ombudsman: Which financial institutions will be exempt from the affiliation obligation in the future), an amendment to the law will (presumably) come into force in mid-2021, according to which only financial institutions with private clients willbe obliged to affiliate to an ombudsman's office (cf. Art. 16 E-FINIG).
The transitional period for joining an ombudsman's office will therefore expire before the relaxation of the affiliation obligation comes into force. As a result, financial institutions that do not provide financial services to private clients would only have to join an ombudsman institution for six months.
We assume that with the relaxation of the affiliation requirement, the eligible financial institutions will again terminate their contract with the ombudsman's office. Moreover, it is probably not in the interest of the ombudsman institutions to affiliate financial institutions for only half a year. The effort associated with the affiliation would hardly pay off for the ombudsman institutions.
The question of whether financial institutions that do not provide financial services to private clients will actually have to join an ombudsman's office until the amendment to the law comes into force is unfortunately currently unresolved. In our opinion, FINMA would be responsible for clarifying the situation. We expect this to happen soon so that the financial institutions and ombudsman institutions concerned have more planning certainty.
Without wishing to anticipate a decision by FINMA, anything other than exemption from the affiliation requirement (in the sense of a pre-effect of Art. 16 E-FINIG) would come as a great surprise to us.
For further information, please contact Dr Hans Kuhn or Sebastian Wälti directly.