Laux Lawyers AG participates in a consultation process for the partial revision of the FINMA Outsourcing Circular 2018/3

FINMA is considering adjusting various of its circulars in connection with the so-called “small-bank regime”: https://www.finma.ch/en/news/2019/04/20190405-mm-kleinbanken, including the Outsourcing Circular 2018/3. Laux Lawyers AG has already participated in the consultation process for the complete revision of this circular in 2017, as the circular has great influence on the Swiss ICT market. Both providers and regulated clients (banks, insurance companies) are strongly affected. It was and is important to examine the outsourcing requirements of FINMA also under the aspect of cloud computing services, which are currently very much in demand.

As part of the “small-banking regime”, FINMA is taking the opportunity to introduce a generally binding adaptation of the regulation with regard to subcontractors to Circular 2018/3.

In principle, the adjustments proposed by FINMA are welcome from the perspective of both providers and regulated clients, as there is more flexibility in terms of the requirement for pre-approval of relevant sub-concordants. See in detail section 8.1.4 (page 12) of the explanatory report.

In detail, however, the revised clauses are to be commented, as they may lead to misinterpretations. In particular, the proposed changes in margin 18 and margin 18.1. are unnecessarily concretizing and contradict the otherwise high principle of FINMA on principle-based regulation. In individual cases, the proposed changes may make certain market participants feel compelled to undertake more complex investigations at the outset.

As a member of the SwissICT Legal Commission, Alexander Hofmann initiated the statement on the partial revision of the FINMA Outsourcing Newsletter 2018/3, which was followed by ICT Switzerland, SWICO and asut, the leading IT industry associations in Switzerland. In terms of content, the submissions are based on the following statement by Laux Lawyers AG, which served as the initiative text for SwissICT.

https://www.lauxlawyers.ch/stellungnahme-laux-lawyers-ag-kleinbankenregime-12072019