SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
secrecy. The success of open banking in Switzerland will depend heavily on providing transparent informa - tion to clients, obtaining the necessary consents and waivers and adhering to the highest standards of IT security. The slow adoption of open banking in Swit - zerland may be due to Swiss banking secrecy and the lack of a common standard for open banking, despite an increasing number of open banking initiatives from private actors.
applicable, further provide for certain criminal provi - sions relating to fraudulent and/or injurious conduct. Finally, Swiss financial market laws, as applicable, require certain organisational measures, which may include adopting fraud prevention and detection measures. Such obligations may arise, for example, from regulations on risk management and internal controls (eg, as specified for the banking sector in FINMA Circular 2023/1 Operational Risks and Resil - ience – Banks), and in relation to AML obligations and sanctions rules (see 2.14 Impact of AML and Sanc- tions Rules ) as well as market integrity (see 6.8 Mar- ket Integrity Principles ). 12.2 Areas of Regulatory Focus In Switzerland, criminal offences, including fraud (see 12.1 Elements of Fraud ), are generally prosecuted by either the competent cantonal public prosecutor’s office or the federal prosecution office of the Swiss Confederation – that is, the Office of the Attorney Gen - eral of Switzerland (OAG) – depending on the specific circumstances of the case. The cantons and Swiss Confederation may further delegate the prosecution and adjudication of contraventions to administrative authorities. Under such delegation, the FDF is the authority responsible for prosecuting violations of the criminal provisions of the Swiss financial market laws. In addition, fraud or non-compliance with organi - sational measures under applicable Swiss financial market laws in relation to an entity subject to pru - dential supervision by FINMA may lead to regulatory investigation and administrative enforcement (see 2.6 Jurisdiction of Regulators ). Furthermore, if FINMA obtains knowledge of criminal offences, it must notify the competent criminal prosecution authorities and may collaborate in exchanging information. In 2022, FINMA filed five criminal complaints with the cantonal prosecutor’s office, eight with the OAG and 145 with the FDF. FINMA is, however, not empowered to pros - ecute criminal charges on its own initiative. Neither the Swiss crime statistics nor FINMA’s enforcement statistics on offences reported to crimi - nal authorities indicate the exact motives for or under - lying types of registered criminal fraud offences, nor the corresponding regulatory focus. As a general note,
12. Fraud 12.1 Elements of Fraud
Under Swiss law, the concept of fraud is primarily understood in a criminal context as an offence pun - ishable under the Swiss Criminal Code (SCC), with criminal liability also being applicable to corporations under certain conditions. To qualify as an offence of fraud under the SCC, the perpetrator must: • deceive the victim – eg, by making false repre - sentations, concealing true facts or reinforcing an erroneous belief; • act maliciously, which is the case when the perpe - trator uses a structure of lies, fraudulent manoeu - vres or staging to deceive the victim – in case of a mere statement of false information by the perpe - trator, this may also be considered malicious if the perpetrator either discourages the victim from veri - fying the information or foresees that the victim will not verify it due to a special relationship of trust; • act wilfully and with the intention of unlawfully securing financial gain for itself or a third party; and • trigger an error on the part of the victim and cause the victim to act to the detriment of its own finan - cial interest or those of a third party, thereby suffer - ing damage. In addition to this general notion of fraud, other crimi - nal offences under the SCC applicable in a commer - cial context may include, to a certain extent, fraudu - lent and/or injurious conduct, such as the forgery of documents, criminal mismanagement and misappro - priation, maliciously causing financial loss to another, bribery and corruption offences and money launder - ing. Beyond the SCC, Swiss financial market laws, as
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