The conclusion of a contract for the initial business relationship is to be considered the commencement of business relations. This can also be done verbally or be implied, which, however, in view of the complex formalities (AMLA 3–5), all of which must be carefully documented (AMLA 7), is hardly likely to be the case today, as the financial intermediary must be able to prove that it has commenced the business relationship in compliance with all corresponding formal due diligence obligations.
A plausibility check that includes generally accessible information should be required. The examining person must know what a real document from the issuing country looks like, even if documentation on foreign ID cards must be purchased for this purpose. If the financial intermediary does not want to incur such expenses, it may have to refrain from accepting identification documents from jurisdictions it does not know and thus the corresponding customers. The examining person must then be aware of the usual indications of counterfeiting, which can be determined with reasonable effort. Depending on the circumstances, this may include, for example, an examination of the ID card under UV light.
Identification by means of a digital certificate is not permitted. On the other hand, personal meetings are now permitted by means of identification via digital channels, i.e. by video and online identification (c. FINMA Circular 2016/7). In the interests of technological neutrality, other articles of AMLO-FINMA relating to formal criteria were also included in the digital context, e.g. AMLO-FINMA 16 (means of clarification in cases of increased risks) and AMLO-FINMA 28 (prerequisites for delegation).
Possibility to meet customer due diligence requirements by relying on third parties who are obliged by law themselves to comply with AML regulations
Yes, such is permissible pursuant to Art. 28 ALMO-FINMA and Art. 43 CDB 20. The delegation of the mandatory identification in the non-banking sector may take place without written agreement either to a body within a company or a group with an equivalent standard of due diligence or to another financial intermediary who is subject to equivalent supervision and regulation with regard to combating money laundering and the financing of terrorism and has taken measures to fulfil the due diligence obligations in an equivalent manner. Alternatively, another third party can be called in if it is carefully selected, instructed, and monitored and its obligations are laid down in a written agreement (AMLO-FINMA 28). Since the due diligence obligations are already fully effective with the commencement of the business relationship, it must be demanded that such a third party is not only trained in the formal area of identification, but also has sufficient knowledge of the business to be able to identify any indications of money laundering or the financing of terrorism that may arise during the identification process.
Possibility to outsource customer due diligence by contract to other third parties who are not obliged by law to meet AML regulations and rely on these (e.g., WebID, IDnow, PostIdent)