Update on the Berne Financial Services Agreement: Swiss Federal Council adopts dispatch on agreement with the United Kingdom on mutual recognition in financial services

Update

On 4 September 2024, the Swiss Federal Council approved the dispatch on the Berne Financial Services Agreement (the Agreement). The Agreement is a landmark international treaty that recognises the equivalence of the legal and regulatory frameworks in selected financial sectors of both countries and aims to streamline cross-border financial services between these two major international financial centres. Supplemented by enhanced regulatory and supervisory cooperation to ensure stability, integrity and customer protection, the agreement will facilitate access to each other's markets.

Background

In particular, the Agreement covers the recognition of equivalence in the areas of banking, investment services, insurance, asset management and financial market infrastructures for sophisticated clients.

For asset management services, the Agreement confirms the existing mutual access for marketing, including advertising and offering collective investment schemes to per se professional clients, institutional clients/eligible counterparties and elective professional clients. It also acknowledges the ability of UK and Swiss financial services firms to delegate portfolio and risk management activities to financial services providers in both jurisdictions.

With regard to banking and investment services, the Agreement allows Swiss financial service providers to provide financial services, in particular portfolio management and investment advice, to per se professional clients, eligible counterparties as well as high net worth individuals with assets in excess of GBP 2 million either on a cross-border basis or as part of a temporary local operation (without prejudice to UK visa and other entry requirements). For UK financial service providers, the Agreement adds additional flexibility for client advisers acting on behalf of UK investment services firms as such advisers will no longer need to individually register with Swiss registration bodies to serve certain high net worth clients. Instead, their firm can give confirmation on their behalf that they meet the prerequisites for giving business or investment advice to Swiss clients. However, not all high net worth clients as defined under the Swiss Financial Services Act (FinSA) are covered by the Agreement and UK financial service providers that are exempt from the registration requirement under the Agreement must still ensure that some specific requirements prescribed by FinSA are met. Further, temporary presence in Switzerland of UK client advisers is possible (without prejudice to the respective visa and other entry requirements of Switzerland).

For central counterparties (CCPs), the Agreement provides for a regulatory recognition by both Switzerland and the UK. This will ensure that Swiss and UK CCPs can provide their services with greater certainty. The Agreement also includes a commitment to firm up current access to trading venues (e.g. stock exchanges and multilateral trading facilities).

With respect to non-centrally cleared OTC derivatives, Swiss and UK counterparties will be free to rely on either recognised Swiss or UK risk mitigation rules (subject to UK standards and supervision of initial margin models and variation margin on physically settled FX swaps and forwards applicable to UK counterparties in accordance with UK domestic law).

For insurance services, the Agreement allows Swiss insurance undertakings to provide cross-border insurance services to large UK corporate clients. Reciprocally, the Agreement offers the same to UK insurance undertakings in Switzerland. The recognition concerns certain lines of non-life insurance, including liability insurance in specific and selected lines of business for professional policyholders. Provision of life, accident and health insurance, liability insurance for non-covered lines of business, monopoly insurance of any kind or business interruption insurance are not in-scope and do not benefit from mutual recognition. Based on the Agreement, non-tied insurance intermediaries in the UK are also relieved from the new Swiss localisation requirement, which entered into force on 1 January 2024. This gives them an advantage over their competitors from all other jurisdictions, which have to establish a local presence in Switzerland.

Timeline

The Agreement was signed by the Swiss Federal Council and HM Treasury in the UK on 21 December 2023. Before it can enter into force, the Agreement must be approved by the parliaments of both countries.

The dispatch is expected to be debated by the first chamber of the Swiss parliament in its winter session in December 2024, followed by a review by the second chamber in spring or summer 2025. Subsequently, the referendum period will begin. The timetable for this process in the UK Parliament is unknown. The earliest possible date of entry into force of the Agreement is not expected to be before 1 January 2026.