# VSB 20 Art. 20 — Establishing the identity of the controlling person - **Rubric (DE):** Feststellung der Kontrollinhaber - **Rubric (EN):** Establishing the identity of the controlling person - **Chapter:** 3. Kapitel — Feststellung des wirtschaftlich Berechtigten an operativ tätigen juristischen Personen und Personengesellschaften (1. Abschnitt: Allgemeine Bestimmungen) - **Scope:** Banks & securities firms (incorporated via [[GwV-FINMA Art. 35 - Identification, controlling person and beneficial|GwV-FINMA Art. 35]]) - **Status:** In force (since 1 January 2020) ## Description Where an operating legal person or partnership has controlling persons (*Kontrollinhaber*) with 25 % or more of the voting rights or capital, they are to be established in writing (Abs. 1). As a rule, natural persons are to be established as controlling persons (Abs. 2). If there are none under Abs. 1, the natural persons who exercise control over the company in another recognisable way are to be established (Abs. 3). If there are none under Abs. 1 and 3, the managing person (*geschäftsführende Person*) is established instead (Abs. 4). This applies to: opening accounts or passbooks; opening custody accounts; fiduciary transactions; accepting mandates to manage assets held with third parties; executing trades in securities, foreign exchange, precious metals and other commodities (subject to an exclusion set out in Bst. e); and cash transactions above CHF 15,000 (Abs. 5 Bst. a–f). The exemptions in Art. 22–26 are reserved (Abs. 6). ## Context & interpretation The SBA commentary states that Art. 20 applies to unlisted operating legal persons and partnerships, i.e. companies running a trade, production or service business (unlike *Sitzgesellschaften*). It describes a three-step cascade: holders of 25 % or more of votes or capital (also reachable by joint agreement, e.g. a shareholders' agreement); persons controlling in another recognisable way; the managing person as fallback, who does not actually control the company. The bank may generally assume the *Formular K* is correct, and repeats the establishment under Art. 46 only if it doubts it or there are obvious indications of incorrectness. ## FATF - [[FATF R.10 - Customer due diligence|FATF R.10]] — identification of the beneficial owner of a customer; here, of the controlling persons of an operating legal person or partnership. - [[FATF R.24 - Transparency and beneficial ownership of legal persons|FATF R.24]] — the SBA commentary states that the GwG's controlling-person enquiry for legal persons rests on FATF Recommendation 24. ## Swiss counterparts - [[GwV-FINMA Art. 56 - Controlling person – principle|GwV-FINMA Art. 56]] — parallel rule for GwV-FINMA Title 5 entities: written declaration of the controlling person for unlisted operating legal entities and partnerships. - [[GwG Art. 2a - Definitions (incl. politically exposed persons|GwG Art. 2a]] — statutory definition (Abs. 3) of the beneficial owner of an operating legal person: 25 % of capital or votes, control in another way, and the fallback to the highest member of the governing body. - [[GwG Art. 4 - Establishing the beneficial owner|GwG Art. 4]] — statutory basis for establishing the beneficial owner (Abs. 2 Bst. b: written declaration where the contracting party is a *Sitzgesellschaft* or an operating legal person). ## Related VSB articles - [[VSB 20 Art. 22 - Listed companies|VSB 20 Art. 22]] — referred to in the article text - [[VSB 20 Art. 23 - Public authorities|VSB 20 Art. 23]] — referred to in the article text - [[VSB 20 Art. 24 - Banks and other financial intermediaries|VSB 20 Art. 24]] — referred to in the article text - [[VSB 20 Art. 25 - Further exceptions|VSB 20 Art. 25]] — referred to in the article text - [[VSB 20 Art. 26 - Condominium and co-ownership communities|VSB 20 Art. 26]] — referred to in the article text ## Part of - [[VSB 20]] ## Further AMLR connections - [[AMLR Art. 20 - CDD measures|AMLR Art. 20]] — VSB Art. 20 covers one limb of AMLR's beneficial-owner concept: controlling persons (25%+ votes or capital, other control) of operating legal entities. See The Swiss beneficial-owner split. *(related)* - [[AMLR Art. 22 - ID - verify customer + BO|AMLR Art. 22]] — VSB Art. 20 Abs. 4 falls back to the managing person (geschäftsführende Person) where no controlling person exists, comparable to AMLR's senior-managing-officials fallback; AMLR additionally requires recording that no beneficial owner was identified and verifying the officials' identity. *(direct)* - [[AMLR Art. 51 - Identify BO of legal entities|AMLR Art. 51]] — Bank cascade for operating entities: 25% holders (Abs. 1), then other controllers (Abs. 3), then managing person (Abs. 4). Control is a fallback step, not parallel as in Art. 51. *(direct)* - [[AMLR Art. 52 - BO through ownership interest|AMLR Art. 52]] — Same 25% threshold, measured on votes or capital (AMLR: shares, voting rights or other ownership interest incl. profit and liquidation rights), for operating legal persons and partnerships; listed companies are exempt (Art. 22). No indirect-chain calculation rule and no power to lower the threshold. *(direct)* - [[AMLR Art. 53 - BO through control|AMLR Art. 53]] — Control by other recognisable means is a step only when no 25% holder exists (Abs. 3), not in parallel as in Art. 51 second paragraph. The article lists no examples or tests of control and has no 50%-plus-one rule. *(related)* - [[AMLR Art. 63 - Obligations of legal entities|AMLR Art. 63]] — Both substitute the managing person(s) where no beneficial or controlling owner can be identified. AMLR requires the legal entity to report this; VSB requires the bank to establish it. *(related)* ## Sources - VSB 20 (Vereinbarung vom 13. Juni 2018, in force 1.1.2020), Art. 20 - SBVg Kommentar zur VSB 20, Art. 20