Note
This article first appeared in Alternative News powered by Hedgework in August 2011 and is no longer available online. For the sake of good order, it should also be pointed out that the following revised and translated article is only intended to briefly present the factual and legal situation in 2011. For an in-depth overview, please refer to the historical part of the dissertation: Die vermögende Privatperson als qualifizierter Anleger im Kollektivanlagenrecht, published by Tectum Verlag 2014, pages 19-51.
Introduction
On 1 July the UCITS IV directive came into force – an important step by the EU states on the way to a single European fund market. next, the states are preparing for the introduction of the AIFM directive. this will force countries such as Switzerland into action. The directive introduces uniform regulation for managers of alternative investment funds at EU level. It provides for a licensing and supervisory requirement for all EU-domiciled managers who manage, hold in safe custody or distribute alternative investment funds to professional investors. The directive also regulates direct market access for third countries and also the possibility of delegating certain business activities for fund managers domiciled in the EU to fund managers in third countries such as Switzerland.
Voluntary Alignment
In its report on Switzerland’s position in the process of European integration, the Swiss Federal Council did not prescribe any automatic adaptation to European legislation as early as August 1988, but did propose promoting European reflexes in the legislative and political decision-making process. Four years before the official application for accession to the European Community was submitted, a great deal of attention was paid to European law.
The first step towards European integration was the accession to the European Economic Area (EEA). In December 1992, however, those entitled to vote narrowly rejected this. Since that time, Switzerland has maintained an ambivalent relationship with the EU. According to the Federal Constitution, the Federal Council must take measures to safeguard Switzerland’s external security, independence and neutrality. However, in connection with the willingness mentioned at the beginning to promote the legislative process through European reflexes and the de facto necessity of creating a level playing field in Europe, the interested parties also pressed for an autonomous implementation of European legislation in the area of collective investment schemes.
The implementation of UCITS I and 85/611/EEC in the area of investment fund legislation was only carried out at the level of ordinances. However, large parts of the fund business have migrated to Luxembourg during this period. In 2007, the legislator transposed individual components of the UCITS III Directive and the two amending Directives 2001/107/ EEC and 2001/108/EEC into Swiss law in the Federal Act on Collective Investment Schemes (CISA), thereby adapting the 1994 investment fund legislation to the revised EU regulations. The aim was to restore the competitiveness of the Swiss financial centre and to increase its attractiveness at European and global level.
AIFM Directive in Switzerland
The AIFM Directive or 2011/61/EU was published in the Official Journal of the EU in July 2011. The managers of alternative investment funds (AIF) are to be regulated uniformly throughout Europe from mid-2013. Anyone wishing to manage an AIF domiciled in the EU or a third country AIF from the EU or to market shares or units thereof to professional investors must now be supervised by a regulator and obtain a licence for the business activity from the competent national supervisory authority.
