This section provides a high-level overview on sustainable finance regulation in Switzerland. It does not claim to be comprehensive and does not represent legal or tax advice.
A) CODE OF OBLIGATIONS
C) SWISS FINANCE ASSOCIATIONS
A) Code of Obligations
Following the rejection of the “Responsible Business Initiative” by Swiss voters, Parliament adopted an indirect counterproposal. These new provisions of the indirect counterproposal were part of the revision of the company law anchored in the Code of Obligations (CO). They provide non-financial reporting obligations (Art. 964a-964c CO) as well as due diligence and transparency obligations in the areas of conflict minerals and child labour (Art. 964j-964l CO). The new Art. 964a et seq. CO entered into force on 1 January 2022 and apply as of business year 2023.
1. Non-financial reporting obligations (Art. 964a et seq. CO)
a) Scope of application (large companies)
Companies of public interests must publish a report on non-financial matters each year if - in two successive financial years and together with all Swiss or foreign companies controlled by them - they 1) have at least 500 full-time position (annual average) and 2) exceed at least one of the following two thresholds: a balance sheet total of 20 million CHF or sales revenues of 40 million CHF.
Companies are of public interests if, in particular, they have equity securities listed on a stock exchange, have bonds outstanding or require a license, recognition, authorisation or registration from FINMA (e.g. banks, insurers).
Companies fulfilling these requirements are exempt from the non-financial reporting obligations if they are controlled by a company that; 1) falls within the scope of application or 2) must prepare an equivalent report under foreign law.
b) Content of the non-financial report (Art. 964b CO)
The report on non-financial matters must cover environmental matters, in particular CO2 goals, social issues, employee-related issues, respect for human rights and combating corruption. It has to cover the information needed to understand the business performance, the business result, the state of the undertaking and the effects of its activity on these non-financial matters.
c) Ordinance on Climate Disclosures
Regarding the reporting obligations on non-financial matters required by the CO, the Federal Council specified the requirements for climate disclosure and adopted the Ordinance on Climate Disclosures on 23 November 2022. Large companies that base their report on the “Recommendations of the Task Force on Climate-related Financial Disclosure” (TCFD-recommendations) and the annex “Implementing the Recommendations of the Task Force on Climate-related Financial Disclosures”, version of October 2021 and cover the topics of governance, strategy, risk management as well as key figures and targets, will be assumed to be compliant with the climate reporting obligations in accordance with Art. 964b para. 1 CO.
If a company does not make disclosures on climate issues in accordance with the TNFD-recommendations it must; a) demonstrate that it complies in other ways with the climate disclosure obligation in accordance with Article 964b para. 1 CO as regards climate issues; or b) clearly declare that it does not follow any climate concept and justify this decision.
The Ordinance on Climate Disclosures will enter into force on 1 January 2024.
2. Due Diligence and Transparency Obligations in Relation to Minerals and Metals from Conflict-Affected Areas and Child Labour (Art. 964j et seq. CO)
a) Scope of application
Undertakings whose seat, head office or principal place of business is located in Switzerland must comply with obligations of due diligence in the supply chain and report thereon if:
1) they place in free circulation or process in Switzerland minerals containing tin, tantalum, tungsten or gold or metals from conflict-affected and high-risk areas; or
2) they offer products or services in relation to which there is a reasonable suspicion that they have been manufactured or provided using child labour.
b) Due diligence obligations
Undertakings in scope must comply with an ongoing due diligence process. They must maintain a management system and particularly definea supply chain policy as well as a supply chain traceability system (see Art. 964k CO).
c) Reporting obligations
Each year a report on compliance with the due diligence obligations must be published.
d) Ordinance on Due Diligence and Transparency in Relation to Minerals and Metals from Conflict-Affected Areas and Child Labour of 3 December 2021 (DDTrO)
The Ordinance regulates the due diligence and reporting obligations to be complied with by companies under Articles 964j–964l CO. In particular it provides for definitions, the scope of application of due diligence and reporting obligations in relation to minerals, metals and child labour (including exemptions and exceptions) as well as requirements concerning the due diligence management system, the risk management audit and consolidated reporting. Undertakings that adhere to internationally recognised equivalent regulations are exempt from the due diligence and reporting obligations (see Annex 2 DDTrO). The DDTrO came into force on 1 January 2022.
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The Swiss Financial Market Supervisory Authority FINMA amended the following Circulars and published the following Guidances:
1. FINMA Circular 2016/01 “Disclosure – banks”, FINMA Circular 2016/02 “Disclosure-insurers” and Guidance 01/2023
FINMA specified transparency obligations for climate risks in FINMA Circular 2016/01 “Disclosure – banks” and FINMA Circular 2016/02 “Disclosure-insurers”. The revised circulars entered into force on 1 July 2021. The disclosures had to be made for the first time in the annual report/financial condition report relating to financial year 2021.
Banks and insurers of supervisory categories 1 and 2 must disclose information related to the management of climate-related financial risks annually as part of their annual reporting/ financial condition report. The disclosure must include, at a minimum, the following information:
1) Governance: The main features of the governance structure at the bank/insurance company to enable it to identify, assess, manage, monitor, and report on climate-related financial risks;
2) Strategy: Description of short-, medium-, and long-term climate-related financial risks and their impact on the bank’s/insurance company’s business and risk strategy, and any effect on existing risk categories;
3) Risk management: Risk management structures and processes in place to identify, evaluate and manage climate-related financial risks; and
4) Quantitative information (targets and key data) on climate-related financial risks including the methodology used.
Banks and insurers must disclose the criteria and assessment methodologies used to assess the materiality of climate-related financial risks.
In Guidance 01/2023 Developments with regard to the management of climate risks of 24 January 2023, FINMA draws attention to relevant developments in the area of climate-related financial risk management. FINMA reiterates its expectation that supervised institutions establish an appropriate climate risk management framework based on recognised practices.
2. FINMA Guidance 05/2021: Preventing and combating greenwashing of 3 November 2021
In this guidance, FINMA sets out the following expectations and current practice regarding the management of sustainability-related collective investment schemes at fund and institutional level to ensure investor protection (Art. 12 para. 1 of the Collective Investment Schemes Act, CISA):
- Sustainability-related collective investment schemes: Fund documents must contain appropriate information for investors to make an informed investment decision and reporting on sustainability-related collective investment schemes for investors must contain “a high degree of transparency”.
- Suitable organisational structure at the institutional level for managing sustainablility-related collective investment schemes.
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C) SWISS FINANCE ASSOCIATIONS
This section provides a high-level overview on voluntary self-regulation or guidelines (not recognised by FINMA as a minimum standard) and recommendations published by Swiss finance associations as Swiss Sustainable Finance (SSF), the Asset Management Association Switzerland (AMAS), Swissbanking (SBA), and Association Suisse des Institutions de Prévoyance pour une prévoyance professionnelle solide (ASIP).
a) Practitioners’ Guide of SSF/EY on the Integration of Sustainability Preferences into the Advisory Process for Private Clients of 5 July 2022
These non-binding recommendations address financial institutions that advise private clients. Within the financial institution, they are relevant for many different functions, especially client advisors and any client facing staff (e.g. specialist advisors) and staff in support functions (e.g. training specialists) as well as any other function working on designing, upgrading and implementing the client advisory process. The guide is categorised into five key areas linked to the client advisory process:
- Client onboarding process,
- Knowledgeable client advisors as a prerequisite for complying with information duties towards clients,
- Ensuring that clients suitability preferences are matched with the financial instrument as well as service offering,
- Regular monitoring of product compliance and performance, as well as
- Frequency and content of client reporting.
b) How to avoid the Greenwashing Trap: Recommendations of AMAS and SSF on transparency and minimum requirements for sustainable investment approaches and products of December 2021
These joint AMAS/SSF recommendations are directed at the asset management industry with the intention to build a bridge between asset managers, other financial service providers and end investors. It focuses on the products designed by the fund and asset management industry and sold by financial service providers to investors. The non-binding recommendations have three main goals:
- Define the various sustainable investment approaches and instruments in more detail and set minimum criteria for the implementation of each of them.
- Specify minimum requirements for investor information on the different investment approaches and instruments.
- Identify which of these sustainable investment approaches satisfy the three main sustainable investor goals (financial performance, value alignment, positive change) most effectively.
These recommendations also aim at supporting the “points of sale” and distribution, ensuring a financial advisor has access to all relevant information in order to recommend the most suitable sustainable product to a client.
c) Sustainable Asset Management: Key Messages and Recommendation of AMAS and SSF of 16 June 2020
With this document, SSF and AMAS drew up detailed recommendations for the Swiss asset management industry on how to implement sustainable practices effectively. The recommendations and associated core messages are intended to actively help asset managers incorporate sustainability criteria into their investment processes (governance, investment policy and strategy, strategic and tactical asset allocation, sustainability approaches, monitoring, risk management, transparency and reporting).
a) Self-regulation on Transparency and Disclosure for Sustainability-related Collective Assets of 26 September 2022
Institutions that produce and manage sustainable financial products are subject to organizational, reporting and disclosure obligations at institutional and product levels. These obligations are binding for members of AMAS. They come into force on 30 September 2023 with a transitional period until 30 September 2024 for the submission of the adapted fund regulations and prospectuses to FINMA. This self-regulation is not recognized by FINMA as a minimum standard.
b) AMAS Circular 04/2022 Environmental Indicator for Real Estate Funds
Together with Swiss Sustainable Finance (SSF), AMAS published key messages and recommendations on sustainable asset management in 2020, followed by recommendations on transparency and minimum requirements for sustainable investment approaches and products in 2021 (see section SSF below). In view of these developments AMAS published the environmental indicators for real estate funds by Circular 04/2022. The environmental indicators are part of the voluntary self-regulation on sustainability of AMAS. They are set out in a separate section of the specialist information factsheet on the key figures of real estate funds and explained in detail in the appendix of Circular 04/2022.
a) Guidelines for financial service providers on the integration of ESG preferences and ESG risks into investment advice and portfolio management of June 2022
The guidelines build on the on the conduct rules of the Financial Services Act (FinSA) and clarify the consideration of ESG criteria at the point of sale (investment advice and portfolio management). They are binding for financial service providers which are SBA members. The guidelines entered into force on 1 January 2023 (for transitional periods see Art. 18 of the Guidelines). They are not recognized by FINMA as a minimum standard.
b) Guidelines for mortgage providers on the promotion of energy efficiency of June 2022
The guidelines relate to the provision of advisory services to private individuals by mortgage providers in regard to the financing of owner-occupied real estate. They set out some mandatory content that must be discussed with customers during the consultation. The guidelines entered into force on 1 January 2023 (for transition periods see Art. 7 Guidelines). They are not recognized by FINMA as a minimum standard.
a) ESG Guidance for Swiss Pension Funds of July 2022
In July 2022, ASIP published a practical guide for pension funds on how to consider ESG criteria in their investment decisions. See position 3 of ASIP here.
b) ESG Reporting: Standards for Pension Funds of 13 December 2022 (Recommendations)
These non-binding recommendations have the objective to increase transparency of pension funds on how they implement ESG criteria into their investment process. The ESG reporting standard includes qualitative and quantitative disclosure recommendations. They entered into force on 1 January 2023.