Switzerland: FINMA Issues New Guidance Regarding Insurance Intermediation

In this context, FINMA just published guidance which details the new obligations that insurance intermediaries will have to comply with from 1 January 2024 and outlines critical forthcoming actions that insurance intermediaries must undertake.

• Register entry: as is already the case today, untied insurance intermediaries will have to be registered in FINMA's public register of insurance intermediaries, but will be subject to more stringent registration conditions (e.g., obligation to have a seat, domicile or branch in Switzerland or increased minimal professional indemnity insurance for certain intermediaries). Untied insurance intermediaries who are already registered as such on 1 January 2024 can continue to operate, but will have to submit follow-up documentation to FINMA by 30 June 2024. Tied insurance intermediaries will no longer be listed in FINMA's register.
• Training and further education: all insurance intermediaries will have to acquire and prove that they possess the necessary skills and knowledge for their activities. The insurance industry will define the applicable standards itself and organize mandatory training and further education. Insurance intermediaries active on 1 January 2024 can continue to operate, but will have to meet the further education requirements set by the industry by 1 January 2026.
• Duty of information: the information that insurance intermediaries will have to provide to clients before the conclusion of a contract will be extended. Untied insurance intermediaries will notably have to disclose all forms of compensation received from insurance companies or other third parties in connection with the provision of their intermediation services.
• Conflicts of interest: insurance intermediaries will have to take appropriate organizational measures to prevent conflicts of interest or to exclude any disadvantages that may result from such conflicts for clients. If any such disadvantage cannot be excluded, it must be disclosed to the client before the conclusion of the insurance contract. Certain situations incompatible with the independence of untied intermediaries will however be strictly prohibited (e.g., exclusive collaboration agreements or qualified shareholding in insurance companies).
• Insurance-based investment products: as with financial instruments under the Financial Services Act, the offer of "qualified" life insurance policies (i.e., life insurance policies, in which the policyholder bears a risk of loss in the savings process, as well as capitalization and tontine operations) will be subject to special conduct rules (e.g., verification of appropriateness) and information duties (e.g., provision of a key information document).
• Reporting obligation: untied insurance intermediaries will be subject to certain annual reporting obligations towards FINMA.

Consequently, FINMA is inviting participants within the insurance sector to ascertain whether their planned or ongoing activities fall under the category of insurance intermediation and whether such activities will be conducted in a tied or untied capacity. New applications for registration in FINMA's public register before the end of the year must be submitted via FINMA's online intermediary portal until 17 November 2023. Changes to existing registrations must be submitted via the same online portal until 15 December 2023. As previously indicated, untied insurance intermediaries who are currently registered must submit follow-up documentation to FINMA by 30 June 2024. Foreign insurance intermediaries will have to provide FINMA with a domicile for service in Switzerland until 30 June 2024.

Of note, insurance companies will also have obligations to fulfil in connection with their intermediation activities. They will in particular have to ensure that the insurance intermediaries with whom they collaborate meet the relevant regulatory requirements (e.g., registration of untied insurance intermediaries in FINMA's public register). Collaborating with non-compliant insurance intermediaries constitutes an unauthorized activity and will be investigated by FINMA as part of its ongoing supervision of insurance companies.