FINMA Circular 2017/6 Consultation: Direct Transmission Without a List

On 30 September 2026 FINMA opened a consultation on a partial revision of FINMA Circular 2017/6 “Direct transmission”, the circular that sets out when Swiss supervised institutions may send non-public information straight to a foreign authority without going through FINMA’s administrative assistance. Comments are due by 27 November 2026, and FINMA plans to bring the revised circular into force on 1 May 2027.

The trigger sits one level up. Parliament amended Article 42c of the Financial Market Supervision Act (FINMASA) on 19 June 2026, separating transfers made for financial market supervisory purposes from transfers made for other purposes and writing a legal presumption of confidentiality and speciality into the statute. FINMA’s draft carries that change through the circular, and its most visible consequence is the end of the published list of foreign supervisory authorities eligible for administrative assistance.

For a bank, insurer, financial market infrastructure or other FINMA-supervised institution with foreign group entities, branches or regulators, the revision rewrites the triage behind every direct transmission: which paragraph of Article 42c applies, when the presumption can be relied on, and which transfers still need prior notification to FINMA. Paragraph references in internal directives move as well, because the amended statute has six paragraphs where the current one has five, of which the circular interprets the first four.

Related reading: Swiss Too-Big-to-Fail Reform: 2026 Banking Act Consultation

FINMA Circular 2017/6 consultation dates and legal status

Two instruments move on separate tracks. The statute has been adopted by Parliament but is not yet in force; the circular is still a draft. The dates below come from FINMA’s consultation documents, the final-vote text published by Parliament and the amendment’s publication in the Federal Gazette.

Only part of the package exists in English. The press release, the two-page key points and the information sheet are available in English, while the draft amending decree and the explanatory report are published in German and French only. Anyone checking a specific margin number has to read the German or French marked-up decree, because the English documents summarise it.

Comments go to FINMA electronically at regulation@finma.ch, as Word and PDF files. FINMA states that, unless respondents indicate otherwise, it will assume they consent to their opinions being published. It skipped a pre-consultation with the industry, citing the limited reach of a revision that essentially tracks higher-ranking law, and it runs the hearing under Article 10(2) of the FINMASA Ordinance with a two-month period. After the consultation, FINMA’s board of directors weighs the responses and sets out in a report on the results how far they were taken into account.

Article 42c FINMASA after the 19 June 2026 amendment

Article 42c has been in force since 2016. The Federal Council’s dispatch explains that the legislature introduced it mainly to relieve supervised institutions and their employees, who should be able to meet obligations toward foreign financial market supervisors without being permanently exposed to criminal liability under Article 271 of the Swiss Criminal Code. FINMA’s 2019 ex-post evaluation of Circular 2017/6 then found, in the dispatch’s words, that the interpretation of paragraphs 1 and 2 led to considerable legal uncertainty among supervised institutions. The 2021 partial revision of the circular had already widened the list to authorities with which FINMA holds bilateral cooperation agreements meeting the administrative assistance standard, and clarified the reporting process.

The 2026 amendment restructures the article. The table maps the topics; the statutory wording is from the German final-vote text, and English renderings in this article are my own translations, pending an official English version.

The adopted text also contains a sixth paragraph, a reworded version of the current paragraph 5: FINMA may make the transmission or forwarding abroad of files from the supervisory relationship, and their publication, subject to its consent, where this serves the fulfilment of its tasks and no overriding private or public interests stand in the way. The dispatch calls this the supervisory privilege. The draft circular does not interpret it, and its margin no. 1 would refer to Article 42c paragraphs 1 to 5.

Paragraph 2 has two sentences, and the second one matters for operations. Supervised institutions may assume the paragraph 1 let. a conditions are met unless confidential treatment and purpose-bound use are obviously not guaranteed, and the statute requires them to point out to the recipients that the information may only be used within those conditions. FINMA’s explanatory report describes how Parliament got there: it restored the objective confidentiality and speciality conditions in paragraph 1 let. a as they read in the current law, and moved the presumption, refined by the obviousness threshold and the duty to inform recipients, into a paragraph of its own.

That parliamentary rework creates a citation trap. The Federal Council’s 2025 draft kept the current numbering for business-transaction transfers (paragraph 2), notification (paragraph 3), the reservation (paragraph 4) and the supervisory privilege (paragraph 5), and placed the presumption inside paragraph 1 let. a. Parliament’s version shifts each of those rules down by one paragraph. Memos written from the dispatch therefore cite paragraph numbers that the adopted text uses for different rules.

FINMA’s list of authorities gives way to a statutory presumption

Under margin no. 20 of the current circular, FINMA publishes a list of foreign financial market supervisory authorities that meet at least one of three tests: FINMA has given them administrative assistance in the past, a court has found that they meet the speciality and confidentiality conditions, or FINMA has concluded a bilateral cooperation agreement with them that is sufficient for administrative assistance. Bilateral supervisory cooperation agreements, the instrument type covered in our HKMA-MAS banking supervision MoU explainer, were the third route onto the list when FINMA itself concluded them. Margin no. 21 lets institutions assume that a listed authority meets the conditions. FINMA last updated the list document on 6 May 2026.

The draft deletes that mechanism. New margin no. 20 states that supervised institutions may presume the Article 42 paragraph 2 conditions are met, citing Article 42c paragraph 2, and margin no. 21 states that the presumption lapses where it is obvious that confidential treatment or purpose-bound use of the information is not guaranteed. Margin nos. 22 to 26, which required further clarification for unlisted authorities and listed the tools for it, are repealed.

FINMA’s key points give the reason plainly. The presumption applies to every competent foreign supervisor, listed or not, so keeping the list alongside it would raise the question of what an authority’s absence from the list means. FINMA concludes that, for consistency and legal certainty, the general presumption should replace the list.

The presumption is narrower than the list looked in day-to-day use. It covers only the paragraph 1 let. a conditions, confidentiality and speciality. Three other questions stay with the institution, and the draft keeps the rules that govern them, apart from the refined definition of financial market supervision in margin no. 11 and the terminology changes in margin nos. 12 and 15:

• whether the recipient is a competent foreign financial market supervisory authority, or another foreign body entrusted with supervision, for the specific task behind the request (margin nos. 8 to 15; authorities active exclusively in criminal or tax matters do not qualify);
• whether the information serves a financial market supervisory purpose at all, which is now the gateway into paragraph 1;
• whether the rights of clients and third parties are preserved, which margin no. 30 ties to business and bank-client confidentiality, data protection and employment-law rights, with precautions governed by Swiss law under margin no. 31.

My reading is that the list also did informal duty as a register of recognised supervisors. Once it goes, classifying an unfamiliar recipient as a financial market supervisor rests entirely on the criteria in margin nos. 9 to 13, which the draft keeps apart from the reworded margin nos. 11 and 12.

When “obviously not guaranteed” applies

The old circular built in doubt triggers. Further clarification was required where the requesting authority was not on the list, did not state the purpose of its request, or there was reason to suspect it would not keep the information confidential or use it solely for enforcing financial market law (current margin nos. 22 to 25). If doubt remained after clarification, the institution had to refrain from transmitting (margin no. 27).

The draft resets the threshold to obviousness. Under new margin no. 27, where it is obvious that confidential treatment or purpose-bound use is not guaranteed, institutions may either carry out appropriate clarifications and take precautions, or refrain from the transmission. The toolbox survives from the old margin no. 26: additional information or confirmations from the foreign authority or body, a written opinion from a local lawyer specialising in financial market law or an international law firm, or an internal assessment by a qualified person. Where those steps do not remove the doubt, the transmission must not take place.

FINMA’s explanatory report gives five examples of obviously missing confidentiality or speciality:

• earlier breaches of confidentiality or disregard of speciality by the recipient, such as confidential information appearing in the press, or documented cases of use for other purposes;
• a concrete announcement of use for another purpose in the correspondence or the request itself, for example criminal proceedings, tax purposes or political purposes;
• a stated intention to pass the information to other authorities or bodies without sufficient guarantees of speciality;
• a recent public or officially confirmed cyber incident at the requesting body that exposed confidential supervisory or personal data, with indications that the weaknesses have not been fixed;
• a finding by a court or independent supervisory body that the recipient breached speciality or confidentiality, with no sign that the shortcomings have since been remedied.

These examples sit in the explanatory report. The draft circular text itself contains only the press-publication example, in margin no. 28. A respondent who wants the cyber-incident or court-finding cases to carry the weight of circular text has a concrete drafting point for the consultation.

Margin no. 28 keeps a duty to inform FINMA where a particular authority does not meet the speciality or confidentiality conditions, but its trigger shifts. The current text applies when an institution “has reason to suspect” a problem; the draft applies when the problem “is obvious”. The words extending the duty to authorities on FINMA’s list disappear with the list.

One repealed trigger deserves a second look. The old margin no. 24 sent a request without a stated purpose into further clarification. That trigger goes, yet paragraph 1 now only covers information that serves a financial market supervisory purpose. As I read the draft, an unexplained request still cannot be placed under paragraph 1 or paragraph 3 until the purpose is known, so the purpose question moves from the confidentiality analysis to the scope analysis.

The notice to the recipient survives in margin no. 29. On every transmission, institutions tell the foreign authority or body that the information is confidential and may be used solely to enforce financial market law or forwarded to other authorities, courts or bodies for that purpose. The required form changes from “in writing or by e-mail or fax” to writing or another form that allows proof by text. FINMA’s explanatory report calls this a technology-neutral wording with no material effect.

Supervisory purpose or business purpose: the paragraph 1 and paragraph 3 line

The draft refines the definition of the term that now decides the paragraph. Revised margin no. 11 describes financial market supervision in material terms as enforcing the financial market acts under Article 1 paragraph 1 FINMASA, in particular compliance with licensing conditions such as solvency rules on liquidity and capital, risk management, risk concentration, organisation, proper business conduct and all specific conduct obligations. In functional terms it covers licensing, ongoing supervision including enforcement and any compulsory liquidation, crisis measures, and measures in the event of insolvency risk, namely protective measures, restructuring and bankruptcy liquidation. The explanatory report stresses that the list is not exhaustive. Margin nos. 12 and 15 adopt the statute’s terminology of financial market supervisory purposes and financial market supervisory law.

Margin no. 32 is reworded to state the split directly. Paragraph 1 covers only transfers that serve a supervisory purpose. Paragraph 3 covers transfers that serve no supervisory purpose but take place within finance-market-related regulation, with a transaction register or a reporting office of a foreign authority as the examples. FINMA says the substance of existing practice does not change.

What does disappear is the hierarchy between the two paragraphs. Current margin nos. 33 to 33.2 make the business-transaction route subsidiary: if a transfer is possible under paragraph 1, it must go under paragraph 1. The draft repeals those margin numbers, along with margin no. 41, which pushed information beyond what foreign law requires into paragraph 1. Margin no. 33.3 stays, updated to say that confidentiality and speciality need not be observed for paragraph 3 transfers.

The paragraph 3 conditions stay demanding. The information must relate to business that institutions usually conduct within their authorisation for clients, for themselves or within the group abroad, such as securities transactions (margin no. 39), and its transmission must be necessary to carry out that business under the applicable foreign law (margin no. 40). Transfers to foreign criminal or tax authorities cannot use paragraph 3 (margin no. 35), nor can transfers to a body where there are indications that it acts for such an authority (margin no. 37). Margin no. 35 also keeps the statement that transfers to foreign supervisors or bodies acting for them usually fall under paragraph 1.

The dispatch fills in the use cases. It names reports to foreign trade repositories for securities or derivatives transactions as a main application of the business-transaction paragraph and describes these flows as serving the operational execution of cross-border business. It adds that the paragraph is not limited to standardised mass reporting: individual answers to specific queries from foreign bodies about particular transactions or clients can also qualify. Custody chains follow a separate track. The dispatch states that transfers to third-party custodians remain governed by the Federal Intermediated Securities Act, with its Article 11b acting as lex specialis to Article 42c, which matters for the custody-chain set-ups discussed in our FINMA crypto custody guidance 01/2026 review.

Notification to FINMA under Article 42c paragraph 4

The test for material importance does not change. Under margin nos. 43 to 46, an intended transmission requires notification where the information itself is of material importance within the meaning of Article 29 paragraph 2 FINMASA, or where the transmission itself makes it material because the information is headed abroad, assessed at the time of transmission. The draft narrows margin no. 43 to transfers under paragraph 1. The examples of always-notifiable information in margin nos. 48 to 57 stay, among them information destined for foreign preliminary investigations and proceedings that could lead to sanctions with a significant impact on the institution’s risks, FINMA supervisory and enforcement files, internal and external audit reports, board and executive committee material, capital planning including Swiss stress test results, and recovery and resolution plans. The counter-examples in margin nos. 58 to 68, such as the CET1, leverage, LCR and NSFR figures that have to be published periodically, also stay.

The procedure changes in two places. The lead-in to the always-notifiable examples drops the words “or simultaneously”, and margin no. 72 loses its second and third sentences, which let notifiable transfers under the old paragraph 2 go out at the same moment as the notification to FINMA. Under the draft, notifiable paragraph 1 transfers may only take place after FINMA has responded. The explanatory report explains the removal: business-transaction transfers serve no supervisory purpose, FINMA could not attach an administrative assistance reservation to them because it could not provide that information through administrative assistance itself, and the statute removes them from the notification duty.

The response timetable carries over. Margin no. 71 keeps FINMA’s usual feedback within five working days on whether it reserves the administrative assistance channel, a period FINMA may extend in individual cases, for example because of complexity; the institution may tell the foreign authority about an extension, and in urgent cases it contacts FINMA without delay. Under margin no. 73, FINMA may waive the reservation subject to conditions, for example that only part of the requested information is transmitted directly. FINMA’s own figures put the scale in context: its web page on the list states that it reserved administrative assistance only 15 times between 2017 and 2022.

A response from FINMA carries no approval. Margin no. 74 says FINMA has no legal basis to approve direct transmissions and, on receiving a notification, does not check whether the paragraph 1 conditions, including the protection of client and third-party rights, are met. The draft only adjusts the paragraph references here; responsibility for the checks stays with the institution.

Group companies, parents and outsourcing partners abroad

Margin nos. 5 and 6 decide when a transfer inside a group falls under Article 42c at all. Where an institution sends information to a group company or branch outside Switzerland, or to a foreign service provider within the meaning of margin no. 3 of FINMA Circular 2018/3 “Outsourcing”, and that recipient later passes it on to a foreign authority, the onward transfer is in principle a matter of foreign law, outside Article 42c. Article 42c governs where the institution sends the information abroad for the purpose of onward transmission.

The draft changes the vocabulary and the explanatory report explains why. FINMA has seen cases where a Swiss subsidiary sends information to its foreign parent under Article 4quinquies of the Banking Act, and the parent then forwards it to a foreign authority. FINMA has regularly pointed such institutions to margin nos. 5 and 6 and to the rule that Article 42c applies, in place of Article 4quinquies of the Banking Act, where the parent has no original interest of its own in the information, that is, where it receives the information only to forward it. The current margin no. 5 mentions only a “subsidiary or branch”, while margin no. 6 speaks of foreign group entities. The draft uses “group company” in both, modelled on Article 2bis of the Banking Act, and replaces the old outsourcing reference to Circular 2008/7 with Circular 2018/3.

The explanatory report presents this as a recurring supervisory issue, which makes the routing test worth writing into the directive. A data pack labelled as group reporting stays within Article 42c where the parent’s only use for it is to pass it to its own regulator. FINMA’s test turns on whether the parent has an original interest of its own in the information, and the answer decides whether the paragraph 1 checks, the recipient notice and the notification analysis apply.

Internal directives and audit coverage

Margin nos. 80 and 81 are unchanged. The circular requires supervised institutions to issue internal directives governing the processes needed to comply with Article 42c, unless direct transmission is of little or no relevance to them and they record that fact appropriately. That recorded assessment is the circular’s own proportionality mechanism, set out in Circular 2017/6 itself and separate from the relief package described in our FINMA small banks regime explainer.

For institutions that maintain a directive, the draft touches most of its decision points:

• paragraph references: business transfers move from paragraph 2 to 3, notification from 3 to 4, the reservation from 4 to 5, the supervisory privilege from 5 to 6;
• the step that checks a requesting authority against FINMA’s list, which loses its basis;
• escalation rules built on the old doubt triggers, which the obviousness test in margin nos. 21, 27 and 28 replaces;
• the recipient notice template, which may now use any form that allows proof by text;
• the paragraph 1 and paragraph 3 classification, measured against the new margin no. 11 definition;
• the notification workflow, which loses the simultaneous route and stops at paragraph 1 transfers;
• intra-group and outsourcing routing under the “group company” wording of margin nos. 5 and 6.

Margin no. 82, which subjected these processes to audit under the old FINMA Circular 2013/3, is repealed. The explanatory report states that the FINMA Audit Ordinance of 31 October 2024 (SR 956.161.1) and FINMA Circular 2025/1 on auditing, together with dedicated guidance and templates, now determine which provisions are audited, at what depth and how often, and that the repeal changes nothing in substance.

The timing gap between statute and circular

The Federal Council sets the date on which the amended FINMASA takes effect. FINMA’s explanatory report says the start of 2027 would be possible once the referendum period is taken into account, while the revised circular is planned for 1 May 2027. If the statute takes effect first, the circular in force during the interval would still refer to paragraphs 2, 3 and 4 in their old meaning, to the list, and to simultaneous notification of business-transaction transfers.

Neither the key points nor the explanatory report addresses that interval. The explanatory report describes the circular as codifying FINMA’s practice under the statute, so my working assumption is that the statutory text would govern from its own commencement date. How FINMA would treat the list and the repealed doubt triggers in the meantime remains an open question, and a natural one to raise in a consultation response.

Frequently Asked Questions

Can a foreign central bank receive information under paragraph 1?

It can, if it performs actual financial market supervisory tasks. Margin no. 10, which the draft does not change, says the decisive factor is whether the authority carries out supervisory functions, even secondary ones, as some central banks do, and that criminal-law powers do not disqualify it. Competence for the specific task behind the request is still required under margin no. 13, and the presumption then covers only confidentiality and speciality.

Does Article 42c apply when a foreign supervisor’s staff ask for documents during a visit to Switzerland?

Margin no. 4, unchanged in the draft, says Article 42c does not permit transmission to representatives of a foreign authority who are in Switzerland, and that Article 43 FINMASA on cross-border inspections applies instead. The amended Article 43 adopted on 19 June 2026 states that Article 42c applies by analogy to the handover of documents and information by supervised institutions during a direct inspection.

Does a FINMA reservation issued under the current circular fall away with the revision?

Nothing in the draft says so. Margin no. 77, which the draft leaves untouched, states that a reservation continues to apply until FINMA withdraws it, and margin no. 76, which now sits under the paragraph 5 heading, keeps FINMA’s power to reserve the channel preventively. My reading is that existing reservations remain in place unless FINMA withdraws them.

Do recurring submissions of the same kind to a host supervisor need a notification every time?

Margin no. 69 is unchanged: where an institution intends to transmit similar notifiable information repeatedly or regularly, FINMA may waive notification of future transmissions on its own initiative or on request. Information about a local subsidiary intended for its local supervisor is listed among the non-notifiable examples in margin no. 59.

Can a business-transaction transfer go to a foreign tax authority if the request arrives through a trade repository or reporting office?

Margin no. 35 excludes foreign criminal and tax authorities from the business-transaction route, and margin no. 37 excludes bodies where there are indications that they act for such an authority. The dispatch adds that a transfer is not permitted where it clearly serves the specific purpose of taxation or criminal prosecution.

What if a direct transmission fits neither paragraph 1 nor paragraph 3?

The dispatch states that Article 42c is not meant to be exhaustive, and that the competent body may still grant an exception permit under Article 271 of the Swiss Criminal Code for further cases of direct transmission by supervised institutions to foreign authorities and bodies.

Related Articles

• Swiss Too-Big-to-Fail Reform: 2026 Banking Act Consultation: the parallel Swiss consultation on accountability, FINMA sanctions and liquidity preparation, with responses due on 19 November 2026.
• FINMA Small Banks Regime: Where Proportionality Ends: which requirements the voluntary small banks regime removes and which obligations stay in place.
• FINMA Crypto Custody Guidance 01/2026: The Custody Chain Review: segregation and foreign custodian expectations for Swiss institutions holding crypto assets.
• HKMA-MAS Banking Supervision MoU: The Cross-Border Picture: what a supervisory memorandum of understanding does and does not change for cross-border banking groups.
• AMLA Home-Host Cooperation RTS: 28 May Hearing Guide for Cross-Border AML Teams: how EU AML supervisors are to cooperate when supervising cross-border groups.

Key Takeaways

• Consultation deadline: 27 November 2026, comments as Word and PDF files to regulation@finma.ch; publication of responses is assumed unless the respondent objects.
• Planned start of the revised circular: 1 May 2027. The amended statute’s commencement date is for the Federal Council to set.
• The FINMA-list check in transmission workflows loses its basis once the revised circular applies; recipient classification under margin nos. 9 to 13 stays, with margin nos. 11 and 12 reworded.
• Escalation moves from “reason to suspect” to “obvious” (margin nos. 21, 27 and 28); the clarification toolbox and the stop rule where doubt persists remain.
• Business-transaction flows become paragraph 3 transfers with no FINMA notification and no simultaneous-transfer step; notifiable paragraph 1 flows wait for FINMA’s response.
• Check intra-group data packs for forwarding intent: if the foreign parent has no original interest, Article 42c governs.
• Replace dispatch-era paragraph numbering in policies and legal memos with the numbering of the adopted text.

Sources and References

• FINMA, press release “FINMA launches consultation on the partially revised Circular 2017/6 ‘Direct transmission'” (30 September 2026): finma.ch
• FINMA, “Consultation on the partial revision of Circular 2017/6 ‘Direct transmission’: Key points” (30 September 2026): PDF
• FINMA, “Information relevant to the consultation” (30 September 2026): PDF
• FINMA, draft amending decree to Circular 2017/6, consultation 30 September to 27 November 2026 (German): PDF
• FINMA, explanatory report on the partial revision of Circular 2017/6 (30 September 2026, German): PDF
• FINMA Circular 2017/6 “Direct transmission”, version of 4 March 2021, in force since 1 April 2021: PDF
• FINMA, “Ability of foreign financial market supervisory authorities to provide administrative assistance” (list page): finma.ch
• FINMA, press release on the partial revision of Circular 2017/6 (22 March 2021): finma.ch
• Federal Assembly, Financial Market Supervision Act, amendment of 19 June 2026, final-vote text (business 25.071, German): PDF
• Federal Assembly, Financial Market Supervision Act, amendment of 19 June 2026, Federal Gazette publication (BBl 2026 1769, German): PDF
• Federal Council, dispatch on amending the Financial Market Supervision Act of 12 September 2025, Federal Gazette publication (BBl 2025 2863, German): PDF
• State Secretariat for International Finance, press release on the dispatch (12 September 2025): sif.admin.ch
• State Secretariat for International Finance, Financial Market Supervision Act page: sif.admin.ch

Before 27 November 2026: re-mapping Article 42c

FINMA describes the revision as tracking the statute without material effects of its own, yet it touches nearly every reference in a direct-transmission directive. The practical artifact is a marked-up version of the internal directive that maps each current reference to the adopted paragraphs 1 to 6, replaces the list check and the old doubt triggers with the obviousness test, and removes notification steps for paragraph 3 flows. Institutions that want the explanatory report’s obviousness examples, the treatment of the interval before 1 May 2027, or the scope of “group company” settled in circular text have until 27 November 2026 to say so to FINMA.

Disclaimer: The information on RegReportingDesk.com is for educational and informational purposes only. It does not constitute legal, regulatory, tax, or compliance advice. Always consult your compliance officer, legal counsel, or the relevant supervisory authority for guidance specific to your institution.