# VSB 20 Art. 38 — Collective investments and investment companies - **Rubric (DE):** Kollektive Anlageformen und Beteiligungsgesellschaften - **Rubric (EN):** Collective investments and investment companies - **Chapter:** 4. Kapitel — Feststellung des wirtschaftlich Berechtigten an den Vermögenswerten (3. Abschnitt: Besondere Feststellungspflichten) - **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: where the contracting party is a collective investment scheme (*kollektive Anlageform*) or an investment company (*Beteiligungsgesellschaft*) with 20 or fewer investors, the bank must obtain a declaration on the beneficial owners. Abs. 2: with more than 20 investors, the declaration is required only if the scheme or company is not subject to adequate supervision and regulation regarding combating money laundering and terrorist financing. Abs. 3: schemes and companies domiciled in high-risk states and non-cooperative states according to the FATF are deemed not so subject. Abs. 4: schemes and companies listed on an exchange need not give a declaration. Abs. 5: the bank may also waive establishing the beneficial owners if a financial intermediary within the meaning of Art. 33 acts as promoter or sponsor and demonstrates the application of adequate regulation on combating money laundering and terrorist financing. ## Context & interpretation The SBA commentary states that Art. 38 applies only to schemes and companies not covered by Art. 33, and that domestic ones with more than 20 investors need give no declaration. For foreign ones with more than 20 investors, it states that the exemption applies only if the scheme or its management company is subject to adequate supervision and regulation, and only if the domicile is not a FATF high-risk or non-cooperative state. It states that Art. 38 also covers special purpose vehicles (SPVs) used to issue securities and investment companies that are domiciliary companies (*Sitzgesellschaften*). ## FATF - [[FATF R.10 - Customer due diligence|FATF R.10]] — related: this article sets when a beneficial-owner declaration is required from collective investment schemes and investment companies. - [[FATF R.19 - Higher-risk countries|FATF R.19]] — related, indirect: Abs. 3 refers to high-risk and non-cooperative states "gemäss FATF". ## Swiss counterparts - [[GwV-FINMA Art. 66 - Collective investment schemes and investment companies|GwV-FINMA Art. 66]] — parallel rule for GwV-FINMA Title 5 entities: Abs. 1–2 match VSB Abs. 1–2, and Abs. 3 Bst. a and b correspond in substance to VSB Abs. 4 and 5 (Art. 66 Abs. 3 is phrased as a waiver, "kann verzichtet werden"); VSB Abs. 3 (domicile in FATF high-risk and non-cooperative states) has no counterpart there. - [[VSB 20 Art. 33 - Banks and other financial intermediaries|VSB 20 Art. 33]] — referred to in Abs. 5 (financial intermediary as promoter or sponsor); the commentary states that Art. 38 does not apply to schemes and companies falling under Art. 33. - [[VSB 20 Art. 39 - Domiciliary companies|VSB 20 Art. 39]] — the commentary states that Art. 38 also applies to investment companies that qualify as domiciliary companies. - [[GwG Art. 4 - Establishing the beneficial owner|GwG Art. 4]] — statutory basis for establishing the beneficial owner. - [[GwG Art. 2 - Scope of application (who is|GwG Art. 2]] — provision cited by the commentary (financial intermediaries within the meaning of Art. 2 Abs. 2). ## Part of - [[VSB 20]] ## Further AMLR connections - [[AMLR Art. 61 - BO of collective investment undertakings|AMLR Art. 61]] — Governs when a bank must obtain a declaration on the beneficial owners of a collective investment scheme or investment company, not who counts as one: required with 20 or fewer investors (Abs. 1), with more only if not adequately supervised (Abs. 2); listed schemes are exempt (Abs. 4). No 25%-of-units test. *(related)* ## Sources - VSB 20 (Vereinbarung vom 13. Juni 2018, in force 1.1.2020), Art. 38 - SBVg Kommentar zur VSB 20 (2020), Art. 38