After more than two years of negotiations and in-depth assessments of their respective regulations, Switzerland and the United Kingdom – two countries facing difficulties in accessing European financial markets – signed the Berne Financial Services Agreement on 21 December 2023, an agreement on mutual recognition in a number of financial segments (the “Agreement”). The two countries have recognised the equivalence of their regulatory and supervisory systems in banking, asset management, investment services, insurance and financial market infrastructures.
The benefits of the Agreement for the Swiss financial centre lie in facilitated access to the UK market on a cross-border basis.
Once the Agreement has been ratified by the parliaments of both countries, Swiss banks, securities firms, fund management companies, asset managers and portfolio managers will be able to provide a wide range of investment services in the UK, provided that they are authorised by FINMA to provide the same services in Switzerland – and that they actually provide them – and that they are not already licensed in the UK under the Financial Services and Markets Act 2000. Swiss institutions will thus be exempt from complying with UK licensing conditions and prudential requirements, as the UK will rely on the Swiss license and Swiss prudential requirements. Services may be provided on a cross-border basis or through the temporary presence of employees in the UK, provided that this presence does not create a permanent establishment.
Prior to the provision of any investment services, Swiss financial institutions will be required to notify the Financial Conduct Authority (“FCA”) and FINMA, in an agreed manner, of the authorised services they intend to provide in the UK, the type of financial instruments that will be the subject of those services and the targeted clients. They will then be entered on a register.
A great number of investment services are covered by the Agreement, and authorisation to provide them will depend on whether the Swiss institution is licensed to provide them in Switzerland. For financial service providers incorporated under Swiss law, the Agreement covers the reception and transmission of orders relating to the financial instruments (such as transferable securities, money market instruments, fund units, options and derivatives), the execution of orders on behalf of clients, asset management, investment advice and the granting of loans for executing transactions in financial instruments.
Once registered with the FCA and entered on the UK register, Swiss financial service providers will be able to provide services to clients designated under the Agreement, i.e. eligible counterparties (a category similar to Swiss institutional clients), professional clients per se and High Net Worth Covered Clients (“HNWCC”). The last category differs slightly from that of high-net-worth private clients who are entitled to request treatment as professional clients under the Swiss Financial Service Act (“FinSA”). These are individuals with a net worth of more than GBP 2 million who, in view of the services offered and the transactions envisaged, are able to make their own investment decisions and understand the risks involved, provided that they have declared in writing that they wish to be treated as HNWCCs for the service to be provided to them and that in so doing they understand that they are waiving the protection afforded by UK legislation. Similar rules apply to private investment vehicles acting on behalf of UK resident individuals.
Swiss financial service providers who provide financial services in the UK will be subject to the rules applicable in Switzerland, such as FinSA’s conduct of business rules. However, they will be required to provide additional information to UK clients prior to the provision of services, such as that they are not licensed in the UK, the law applicable to the business relationship and the impossibility to avail themselves of certain rights provided by UK law. They will also be required to report certain information annually to the FCA.
Managing cross-border risks is a major challenge and a cost for financial service providers; it is also a major concern for FINMA. The provision of financial services is in principle regulated by each individual state, and foreign regulation is far from uniform, which generally makes access to a foreign markets – where it is possible – costly and highly complex at the operational level. The Berne Financial Services Agreement will enable Swiss service providers to promote and provide financial services not only without the need to be licensed in the UK, but also in accordance with their own prudential rules. This will make it much easier for Swiss providers to manage their risks. The adoption of the Agreement augurs well for the development of the Swiss financial industry in one of the world’s leading financial centres.