FMA informs about its supervisory practice

In one case, the FMA had to assess the intended acquisition of all shares in a Liechtenstein insurance undertaking by an interested acquirer. The FMA objected to the intended acquisition because the interested acquirer did not meet the legal requirements, in particular because it lacked the necessary suitability. The interested applicant lodged an appeal against the FMA's decision with the FMA-BK.

The FMA-BK felt compelled to ask the EFTA Court for an expert opinion. Among other things, the FMA-BK inquired about the interpretation of the terms "suitability" and "reliability" as well as the binding effect of guidelines issued by the European Supervisory Authorities vis-à-vis the courts of the Member States. On the basis of the expert opinion, the FMA-BK confirmed the objection to the intended acquisition and held that the Liechtenstein courts are required to interpret terms and provisions adopted from EEA law in a manner consistent with EEA law.

This decision is of particular relevance to the FMA because - on the basis of a corresponding opinion of the EFTA Court and, as far as can be seen, for the first time in the European legal area - it has been clarified by the courts that an interested acquirer of a qualifying holding in a financial institution must not only have personal integrity, but also professional competence.

In another case, the FMA had to decide on trustworthiness as a licensing requirement for the activities of a financial intermediary due to a criminal conviction. In proceedings preceding this case, a decision had already been made on the trustworthiness of the intermediary. At that time, the FMA issued an order stating that the intermediary was no longer trustworthy due to a conviction in Austria. The FMA-BK revoked this ruling without replacement. It did so on the grounds that there was no connection between the conviction suffered in Austria and the professional activity of the complainant.

After the aforementioned proceedings, criminal proceedings in Liechtenstein against the same financial intermediary were also concluded at the end of 2023. The person concerned informed the FMA of the final conviction for the offense of attempted breach of trust and the crime of money laundering and claimed that the relevant facts had already formed the basis of the earlier criminal proceedings in Austria and the earlier administrative proceedings of the FMA. The FMA disagreed and stated that the person was no longer trustworthy due to the seriousness of the conviction.

The appeal lodged against this decision was not upheld by the FMA-BK. Rather, it was stated that there were now further facts that led to the domestic conviction and that these criminal acts preclude the assumption of trustworthiness.

At the end of 2024, the FMA conducted a total of 34 administrative proceedings or administrative criminal proceedings. 84 proceedings were concluded. Of these, 15 ended with a suspension of proceedings, 45 with measures by means of a simple letter, eight with a final decree, twelve with a submission and four with an administrative ban or administrative penalty ban. In 2024, the FMA imposed 18 legally binding fines totaling CHF 971,500. a total of 20 warnings were issued in 2024.