Supervisory privilege

FINMA may make the publication, transmission or transfer of files outside Switzerland in the context of supervision subject to its approval if this is deemed necessary to meet supervisory objectives and is not in conflict with overriding public or private interests (Art. 42c (5) FINMASA).

FINMA only invokes supervisory privilege selectively where there is an overriding supervisory interest. The decision to invoke it is taken on a case-by-case basis after a thorough review of the circumstances. FINMA limits the duration and scope of supervisory privilege to the minimum necessary.

Scope and effect

Supervisory privilege covers nonpublic documents and information arising from the interaction between FINMA and a supervised entity („files in the context of supervision“ in the legislation). It prohibits the communication of this information to others, whether by the supervised entity itself or third parties, without the prior consent of FINMA (circumvention prohibition).

Supervisory privilege therefore covers both the forwarding of information to third parties outside Switzerland and publication of any kind inside or outside Switzerland.

Consent to communication

Information which FINMA has made subject to supervisory privilege may only be communicated, published or transferred with FINMA’s prior consent. Applications to disclose the information must be directed in writing to the supervised entity’s contact person at FINMA. The supervised entity must state the information it wishes to disclose, the intended recipients and the reason for the disclosure in the application. FINMA uses this information to balance the different interests appropriately in light of the specific circumstances.