# VSB 20 Art. 36 — Individuals and entities that are bound by professional confidentiality - **Rubric (DE):** Berufsgeheimnisträger - **Rubric (EN):** Individuals and entities that are bound by professional confidentiality - **Chapter:** 4. Kapitel — Feststellung des wirtschaftlich Berechtigten an den Vermögenswerten (2. Abschnitt: Ausnahmen von der Feststellungspflicht) - **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 Abs. 1: the bank may waive establishing the beneficial owner for accounts or custody accounts held in the name of lawyers admitted in Switzerland and notaries, or of law firms and notarial firms organised as companies, for the account of their clients, provided they confirm in writing to the bank that (a) they are not themselves beneficially entitled to the assets; (b) they are subject to the relevant cantonal and federal legislation as lawyer or notary; (c) they are subject to statutory professional secrecy (Art. 321 StGB) with regard to the booked assets; and (d) the account or custody account serves exclusively the activity as lawyer or notary. Abs. 2: the written confirmation must be given on *Formular R*. Abs. 3: if the bank finds that the confirmation was wrongly issued, it must require the beneficial-owner declaration from the contracting party on *Formular A*. If the declaration is not provided, the business relationship must be terminated (*abzubrechen*). ## Context & interpretation The SBA commentary states that, because of professional secrecy (Art. 321 StGB), a lawyer or notary may in some circumstances not give further details on the beneficial ownership of the client funds held. It states that no specification of which secrecy-protected activities the account is used for is necessary, that Formular R must be signed by a lawyer or notary, and that a firm organised as a company needs at least one authorised professional secrecy holder to sign. It states that the bank has no monitoring duty in this respect. ## FATF - [[FATF R.10 - Customer due diligence|FATF R.10]] — related: this article provides for waiving the beneficial-owner declaration on the conditions set out. ## Swiss counterparts - [[VSB 20 Art. 27 - Establishing the beneficial owner|VSB 20 Art. 27]] — the declaration duty from which this exemption applies (Art. 27 Abs. 5 reserves Art. 29–36). - [[VSB 20 Art. 28 - Information to be documented|VSB 20 Art. 28]] — the information to be documented on Formular A, which Abs. 3 requires if the confirmation was wrongly issued. - [[GwV-FINMA Art. 59 - Beneficial owner – principle|GwV-FINMA Art. 59]] — counterpart for GwV-FINMA Title 5 entities: written declaration of the beneficial owner, required there where the contracting party is not identical with the beneficial owner or this is in doubt (Abs. 1). - [[GwG Art. 4 - Establishing the beneficial owner|GwG Art. 4]] — statutory basis for establishing the beneficial owner. ## Part of - [[VSB 20]] ## Further AMLR connections - [[AMLR Art. 21 - Inability to comply with CDD|AMLR Art. 21]] — VSB Art. 36 Abs. 3 requires terminating the relationship if the beneficial-owner declaration is not provided after a professional-secrecy confirmation proves unjustified; one specific case of AMLR's incomplete-CDD termination rule. *(related)* ## Sources - VSB 20 (Vereinbarung vom 13. Juni 2018, in force 1.1.2020), Art. 36 - SBVg Kommentar zur VSB 20 (2020), Art. 36