Legal restrictions on the sale of mutual funds in Switzerland
As a consequence of the entry into force, on March 1, 2013, of amendments to the Swiss Federal Act on Collective Investment Schemes (CISA) and the Ordinance on Collective Investment Schemes (CISO), the law makes a distinction between two categories of investors: qualified investors and individual investors.
As a general rule, investments that are open to qualified investors have a higher degree of risk of loss or more onerous restrictions on sale, in comparison to investments offered to individual investors. Qualified investors benefit from a lower level of protection than individual investors.
According to the definition contained in Article 10 of the CISA, investors are individuals and legal entities, as well as general and limited partnerships, that hold units in collective investment schemes. Certain types of investors are deemed to be qualified investors, including investors who are subject to supervision by FINMA. Qualified investors include regulated financial intermediaries such as banks, securities dealers, fund management companies, regulated insurers, public entities and occupational retirement schemes with professional treasury operations as well as companies with professional treasury operations.
2. What exactly does the law provide ?
Article 10 of the CISA cross-references Article 6 of the CISO for the determination of the net-worth threshold or level of knowledge necessary for an individual investor to be deemed to be a qualified investor:
Art. 6 16 CISO Qualified Investor (Art. 10, para. 3bis and 3ter, CISA)
1 A high-net-worth individual pursuant to Article 10, para. 3bis of the Act shall be any individual who at the time of subscribing to the collective investment scheme meets one of the following conditions:
- the investor provides evidence that they possess:
- the required knowledge to comprehend the risks of the investments based on their individual education and their professional experience or based upon comparable experience in the financial sector; and
- net-worth of at least 500,000 Swiss francs;
- the investor confirms in writing that they possess a net-worth of at least 5 million Swiss francs.
2 Net-worth for the purposes of para. 1 shall include the financial investments directly or indirectly owned by the investor, including:
- bank credit balances (current or deposit);
- trust funds;
- securities (including collective investment schemes and structured products);
- precious metals;
- life insurance policies with a surrender value.
3 Direct investments in real estate, social security entitlements and occupational pension assets shall not be deemed to be financial investments for the purposes of the definition in para. 2.
4 Net-worth pursuant to para. 1 (b) may include up to 2 million Swiss francs of real property. Real property assets shall be included at their net value. The net value shall be calculated on the basis of the market value, after deduction of all debt secured against the real property.
5 The investor must provide evidence of the assets referenced in para. 1 at the time of purchase.
16 Amended by Chap. I of the Ordinance of Feb. 13, 2013, in force since March 1, 2013 (AS 2013 607).
Art. 6a 17 Written Declaration (Art. 10 para. 3bis and 3ter CISA)
1 High-net-worth individuals wishing to be treated as qualified investors pursuant to Art. 10 para. 3bis of the Act shall confirm this in writing. If a private investment structure is set up for one or more high net-worth individuals, confirmation may be provided by a person responsible for managing the investment structure provided he or she is authorized to do so by the investment structure. 18
2 The financial intermediary and the independent asset manager shall:
- notify the investors that they are deemed to be a qualified investor pursuant to Art. 10, para. 3ter, of the Act;
- explain the associated risks to them; and
- inform them that they can make a written declaration that they do not wish to be deemed a qualified investor.
17 Inserted by Chap. I of the Ordinance of Feb. 13, 2013, in force since March 1, 2013 (AS 2013 607).
18 Amended by Annex No 3 of the Financial Market Audit Ordinance of Nov. 5, 2014, in force since Jan. 1, 2015 (AS 2014 4295)
3. Entry portal for the Action Finance website: please select your investor profile
In order to access the pages on the Action Finance website devoted to the distribution of mutual funds as well as the various funds listed on the website, the user must select the appropriate profile for them by clicking on the corresponding button at the bottom of the page.
1. Ownership of the website
The Action Finance website is the property of Action Finance SA (“Action Finance”), which is registered as a company with the commercial register of the canton of Geneva in Switzerland.
The term “Action Finance website” shall mean the website available at the URL address www.actionfinance.ch
2. Accuracy and updating of information
4. Use of the Action Finance website
- copying in a systematic manner (whether by printing or saving on a disk or in any other manner) material portions of the Action Finance website;
- using the information contained on the Action Finance website for illicit purposes;
- transferring documents or portions of the Action Finance website for commercial purposes, with or without consideration, to third parties or making them available to third parties.
5. WARNING: The information published shall not be deemed to constitute investment advice from Action Finance
The information published on the Action Finance shall in no event deemed to be assistance in reaching decisions as to business, legal, tax or other issues, furthermore it should not be used as a basis for taking individual investment or other decisions. Investments in mutual funds should only be made after the relevant documents (and in particular the “Key Investor Information Document or KIID”) have been carefully examined, including the fund rules and the annual and/or half yearly reports which include the relevant legal information. Prior to making an investment decision, you should refer to the personalized advice which will be provided to you during your interview with an Action Finance investment advisor.
6. WARNING: The information published is only intended as background information
The information furnished on the Action Finance website should not be deemed to be adapted to your personal situation. In consequence, the information available is totally unsuitable or inappropriate when it comes to making a personal decision with respect to your investment objectives. Please contact an Action Finance investment advisor prior to making any investment decision.
7. WARNING: Action Finance does not provide any advisory services nor offer any products for sale via its website
The information published shall not be deemed to represent investment advice or an offer or an invitation to purchase or sell investment products or conclude any other transactions or enter into any legal instruments whatsoever.
8. WARNING: Forward-looking statements “Past performance is no guarantee of future performance”
The future performance of an investment cannot be extrapolated from its historic performance, which means that the value of an investment may decrease or increase. In consequence, a good prior performance is no guarantee of good performance in the future. Furthermore, investments in foreign currencies may be subject to unfavorable changes in the exchange rate with reference to the client’s own currency and thus present a higher risk. In consequence, Action Finance can provide no guarantee that any capital invested will increase in value, nor that it will retain its initial value.
Information included on the Action Finance website may include “forward-looking statements”. Even though these statements reflect the forecasts and the opinions of the respective fund promoters, developments and actual results may materially diverge from the expectations of the fund promoters as a consequence of risks, uncertainties or other factors. Action Finance shall have no liability – nor furthermore be bound by any obligation in such regard – to update or modify such forward-looking statements from the corresponding fund promoters, whether as a consequence of new information, future events or for any other reason.
9. Linked or partner websites
The Action Finance website contains links to other websites, including to the websites of the fund promoters. Action Finance has no control over such linked websites. In consequence, Action Finance shall have no liability for the accuracy, completeness, integrity or legality of the content on such websites nor for the offers which may be included on such websites for the specific users thereof.
10. Intellectual property
11. Links to the Action Finance website
You are not authorized to establish a link to the Action Finance website without the prior written authorization of Action Finance.
12. Trademark protection
No element of this site shall be interpreted as granting a license or a right to use an image, registered trademark, a logo or any of the software. The downloading or copying of the site or parts thereof shall not grant you any rights with respect thereto. Action Finance or the fund promoters who deliver the information or documents with respect to the funds reserve all rights (in particular with respect to ownership of copyright and trademarks) with respect to all materials on the Action Finance website and shall be entitled to exercise their rights in full.
13. Conflicts of interest
Action Finance and/or its directors, officers and employees may possess in the future or may have previously possessed units in the mutual funds presented or may still hold such units. Furthermore, Action Finance or any of the previously cited individuals may have or have had a commercial relationship with the fund promoters or companies involved, may furnish them or may have furnished them with other services and may be entitled to commissions with respect to distribution.
14. Legal restrictions on the use of the website, including “Cross-Border” restrictions
The Action Finance website contains information and documents on various mutual funds which are intended for investors who are subject to Swiss law. The site is not intended for any person covered by foreign laws prohibiting publication or access to the Action Finance website (as a consequence of the citizenship or the status (e.g. “US Persons”), of the person in question, their tax domicile or for any other reason). Access by such persons to the pages devoted to the distribution of mutual funds on the website is prohibited no matter what their investor profile.
15. Authorizations for the marketing of mutual funds
Information on the funds and the documents are supplied by Action Finance or by the respective fund promoters. The information and documents which are published on the Action Finance website are based on the distribution contracts established between Action Finance and the fund promoters. Action Finance may not be held liable for any false or erroneous information furnished by the fund promoters. The fund of promoters are solely responsible for the information and documents which are supplied by / via the Action Finance website.
16. User profile: individual investor or qualified investor
Prior to accessing the specific information which describes the various mutual funds, a user of the Action Finance website is required to indicate their investment profile when they first access the Action Finance website: individual investor or qualified investor. The mutual fund information and documents that are subsequently delivered to them are intended solely for a user possessing the investment profile that they have previously selected. An error on the part of the user in the selection of the investor profile may result in the disclosure of information and documents which under the law they may not access. The user agrees to indicate their legitimate investor profile. Action Finance may not be held liable for any damage or claims that the user may suffer as a consequence of the selection of an inaccurate investor profile.
17. Restrictions on access to the pages devoted to the distribution of mutual funds
Access to the website pages devoted to the distribution of mutual funds is exclusively reserved for users in Switzerland.
Please note, that for all purposes, the term “qualified investor” in the selection field of the Action Finance website shall mean a qualified investor pursuant to the definition in Article 10, paragraphs 3, 3bis or 3ter of the Swiss Federal Act on Collective Investment Schemes (CISA). The term individual investor shall mean any investor who does not meet the aforementioned definition of qualified investor. Please see the detailed explanations included in Section A of the Action Finance website: legal restrictions on the sale of mutual funds in Switzerland.
18. Limitation on liability for the use of fund or website documents
The information and documents relating to mutual funds are accessible or are published on the Action Finance website either by Action Finance or by the fund promoters themselves. Action Finance shall have no liability in the event of loss, or for damage, costs or expenses of any nature – whether direct, indirect or consequential – which may arise from the use of the information and documents on the funds, accessing the Action Finance website or the links leading to third-party websites.
Action Finance shall have no liability in the event of the use of the web user’s IT system by unauthorized persons. Action Finance expressly draws users’ attention to the dangers represented by viruses and the risks of targeted attacks committed by pirates. To fight against viruses, Trojan horses, worms and other malicious software, users are recommended to use the most recent versions of the browsers and to install anti-virus software which is permanently updated. As a general rule, e-mails of unknown origin or containing unexpected attachments should not be opened.
20. Access to the Action Finance website
Action Finance may suspend access to the Action Finance website at any time without prior notice. Action Finance provides no guarantee that access to or use of the Action Finance website or the sites linked to the latter will never be suspended or will function without errors at all times.
21. Modifications to the form and content of the Action Finance website
Action Finance shall be entitled in its discretion to modify the format and the content of the Action Finance website at any time and without prior notice. It is recommended that you reload your browser each time you visit the site in order to ensure that you are accessing the most recent version of the Action Finance website.
If one or more provisions of this document are deemed to be invalid, the other provisions shall in all circumstances remain in full force and effect.
25. Applicable law
The mediation shall take place in Geneva, Switzerland. The mediation procedures shall be conducted in French.
In the event that the dispute, difference or claim cannot be completely resolved within a time limit of 60 days from the confirmation of the appointment of the mediator(s) by the Chamber, it shall be settled through arbitration, in accordance with the Rules of Arbitration of the Swiss Chambers of Commerce in force as of the date on which the notice of arbitration is filed in conformity with such Rules.
The arbitration panel shall consist of a single arbitrator. The arbitration shall take place in Geneva. The arbitration shall be conducted in French.
The confidentiality policies describe the manner in which Action Finance collects, uses and processes your personal data. It also indicates the reasons why Action Finance collects your personal data, the usage it makes of cookies (témoins de connexion), when and how it shares personal data with third parties and how it ensures the security of your personal data.
The term “Action Finance website” shall mean the website available at the URL address www.actionfinance.ch
2. What personal data is collected?
The extent of the personal data collected by Action Finance, when you connect to a page on the Action Finance website, is limited to your family name and forename, your e-mail address, your telephone number, the message you transmitted and your classification as an individual investor or a qualified investor.
3. Why does Action Finance collect the personal data and what does it use it for?
Action Finance collects the personal data in order, if applicable, to send you information and documents.
4. How is your personal data collected?
Action Finance collects your personal data when you indicate your investor profile (whether you are an individual investor or a qualified investor) or when you make a connection through the contact page.
5. Cookies (témoins de connexion)
A cookie is a small file that a website installs on your computer or other device in order to record information relating to you. When you access the Action Finance a website for the first time, you will be asked to indicate your investor profile (individual or qualified). The Action Finance website will then install a cookie on your computer or device so that you will no longer be asked to indicate your investor profile during your subsequent visits.
6. Sharing your personal data with third parties
Action Finance does not make your personal data available to anyone else, with the exception of companies related to Action Finance or if you have expressly authorized such a disclosure or if it is required by applicable law. However, third party suppliers of services may have access to your personal data in certain circumstances, when they furnish certain contractual services on our behalf. In such situations, Action Finance requires that these third parties agree by contract to preserve the confidentiality of your personal data.
7. Links to other websites
Action Finance may furnish links to one or more websites operated by third parties. It is recommended that you read the confidentiality policies of such websites prior to providing them with your personal data.
Action Finance shall have no liability for the confidentiality policies adopted by third party websites.
8. Your rights under the data protection legislation
You have the right to be informed as to how your personal data is collected and the objectives and methods of processing such data and to be provided with information as to the entity responsible for the collection and processing of your personal data, information on the entities or types of entities to whom your personal data may be transmitted and who may obtain access to such information, etc.
You have the right to require the updating, rectification or integration of your personal data, its deletion, as well as the anonymization or blockage of data which has been processed in an illicit manner, including data that is no longer required to be retained for the purposes for which it was originally collected or processed.
You also have a right to object, in whole or in part, for legitimate reasons, to the processing of your personal data, even if it is relevant having regard to the purposes for which it was collected, and to the processing of your personal data at the location where it was collected for the sending of advertising, direct sales or other materials for the realization of market research or for commercial communications.
You can exercise the rights described above by sending an e-mail to the e-mail address email@example.com, or by writing to Action Finance SA, 67 rue du Rhône, Case Postale 3107, CH-1211 Genève 3.
9. Security of your personal data
Action Finance has adopted reasonable measures in order to guarantee the security of your personal data, in particular to protect you against unauthorized access, disclosure or modification of your personal data. The measures adopted to protect the security of your personal data include the implementation of firewall systems.
10. Acceptance of these confidentiality policies
By using the Action Finance website, you are deemed to have consented to the collection and use of your personal data as described in these confidentiality policies.