65. FINMA’s enforcement powers have recently been enhanced through the introduction
of specific prohibitions on insider trading and market manipulation. This enables FINMA to
complement the enforcement of the more narrowly defined criminal market abuse provisions with
the use of its administrative enforcement powers. Establishing cooperation with the Attorney
General’s Office, to whom the criminal enforcement powers were transferred from the cantonal
prosecution authorities, has progressed well. Cooperation with the FDF Legal Services Department
in other areas of criminal enforcement is more established, following the signing of an MOU
in 2011. Nevertheless, the question remains as to whether the Swiss administrative and criminal
authorities, as a whole, have sufficiently dissuasive sanctions at their disposal. For example, FINMA
can address market abuse by unsupervised entities only through the issuance and possible
publication of decrees, and orders for the disgorgement of profits. Therefore, the authorities could
further explore the possibility of introducing the power to levy administrative fines.
66. The Swiss authorities will face a significant challenge in coping with the upcoming
securities regulatory overhaul. The planned framework is likely to require assuming new tasks for
the regulation and supervision of unlisted securities, financial market infrastructures, independent
asset managers, and the banks and securities dealers’ business conduct. New regulatory challenges
will also emerge from the international regulatory agenda, including in regard to shadow banking.
The authorities should assess the impact of all these changes on the resources and organization of
FINMA, since they may not be sufficient to respond to the challenges ahead. This would also
provide an opportunity to consider how best to strengthen conduct of business supervision more
generally.
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