- The Federal Council considers the current legislation and the reporting obligations (register for beneficial owners from 25% participation) to be sufficient.
- It rejects public registers, emphasizes data protection and access primarily for authorities and financial intermediaries in accordance with the AMLA.
Postulate Leutenegger-Oberholzer (16.3315): Register of beneficial owners of legal entities and trusts
Postulate rejected.
Submitted text
The Federal Council is invited to present a report on how transparency regarding beneficial owners can be improved in the case of legal entities, legal constructions such as trusts and comparable legal institutions and offshore constructions. In doing so, it must also be ensured that this information is publicly accessible.
Justification
The revised Gafi guidelines require that the beneficial owners of legal entities be recorded. With a complex revision of the law, which came into force on January 1, 2016, Parliament has taken Gafi’s request into account to some extent. In connection with the Panama Papers, it is once again evident that the solution chosen in Switzerland cannot create real transparency. There is no publicly accessible register of the beneficial owners of all legal entities.
There is also a complete lack of transparency regarding the beneficial owners behind legal constructions such as trusts. These are not covered by the transparency provisions for legal entities. The subordination to a financial intermediary and the registration obligation by Finma (cf. the Federal Council’s response to the Motion 13.3356) do not yet ensure public transparency about the respective beneficial owners.
Transparency and the associated public scrutiny are the best protection against abuses and against legal constructs that serve to conceal illegal transactions. This concern also corresponds to the demands of many states as formulated after the publication of the Panama Papers.
Statement of the Federal Council
The Federal Council supports international efforts to improve the transparency of legal entities and legal constructions such as trusts, as well as the persons controlling them (beneficial owners). Switzerland has therefore taken measures to effectively implement the requirements of the Groupe d’action financière (Gafi). For legal entities, Switzerland has in particular Duty introduced to notify the company of the beneficial owners of all shareholdings of 25 percent or more (Art. 697j and 790a CO). The company is obliged to maintain a list – i.e. a register – of the beneficial owners, which must be accessible at all times in Switzerland, in particular to the competent authorities. Any change must also be reported to ensure that the list or register is always up to date. The law also stipulates that asset and membership rights are suspended as long as no notification has been made. However, in contrast to the Federal Council’s draft law of December 13, 2013 on the implementation of the revised Gafi recommendations, the law does not provide for criminal sanctions.
The Federal Council supports the efforts of the G‑20 to effectively implement the internationally existing Gafi standards, However, sees no need for more far-reaching measures, in particular not for the creation of public registers of beneficial ownersas proposed by the G‑5. The information on beneficial owners is of a private-law nature and thus information that is worth protecting, namely from the point of view of trade and data protection. They do not necessarily have to be available for public inspection. What is essential is that the competent authorities in Switzerland have rapid access to this information. In addition, financial intermediaries must also know the beneficial owners of the legal entities with which they maintain business relationships. The relevant applicable provisions of the Anti-Money Laundering Act (AMLA) and its implementing regulations are sufficient.
With regard to legal constructs such as trusts, the Federal Council is of the opinion that information on beneficial owners should primarily be recorded and made available in the states under whose laws these legal constructs were established. Switzerland is actively engaged at the international level in this regard. As a reminder, Swiss law does not permit the creation of trusts. In the case of trusts administered in Switzerland, the identification of the beneficial owners is already possible on the basis of the information that must be recorded by the financial intermediaries in accordance with the MLA. This information is documented in writing and is accessible to the competent authorities. Furthermore, the Federal Council points out that trustees are considered financial intermediaries and are therefore subject to the obligations under the MLA, i.e. including the obligation to identify beneficial owners.
In summary, the Federal Council is of the opinion that the current legislation is sufficient to ensure the transparency of beneficial owners of legal entities and legal constructions, as it is namely guaranteed that the competent authorities always have timely access to this information. The Federal Council sees no need to allow public access to this type of information for everyone.