Summary
On 3 June 2026 FINMA published Guidance 03/2026 on the risks associated with the use of products in individual portfolio management. The Guidance responds to a sharp rise in escalation cases concerning portfolio managers under Article 17 Financial Infrastructure Act (“FinIA”): 68 new supervisory cases opened in 2025, against 44 in 2024 and 9 in 2023. At the centre of FINMA’s concern are actively managed certificates (“AMCs”): structured products that reproduce the economics of a fund while sitting outside the perimeter of collective investment scheme law. This Insight situates the AMC in its historical context, sets out what the Guidance requires of asset managers under the Financial Service Act (“FinSA”) and the FinIA, and offers Lexify’s assessment of where supervision is heading. It addresses only selected aspects of the Guidance and is not an exhaustive treatment of it.
A vehicle Swiss law never built
Swiss collective investment law has long carried a structural omission. The Federal Act on Collective Investment Schemes of 23 June 2006 (CISA; SR 951.31) recognises only a closed set of fund forms — the contractual fund (Art. 25 ff. CISA), the SICAV (Art. 36 ff. CISA), the limited partnership for collective investment (Art. 98 ff. CISA) and the SICAF (Art. 110 ff. CISA) — each requiring FINMA authorisation and a custodian bank. What it never offered was a lighter vehicle: a pooled structure for collective management set up without product authorisation, subject only to a minimum framework such as registration. Between the regulated fund and the private arrangement there was nothing.
The gap drove relocation. A Swiss manager wishing to pool client assets into a single managed, diversified vehicle faced the full CISA burden whatever the investor base. Fund formation migrated to Luxembourg, whose graduated regime (from the UCITS to the RAIF) offered, decisively, EU-wide distribution through the UCITS and AIFMD passports. A Luxembourg vehicle could be marketed across the internal market; a Swiss one could not. The Limited Qualified Investor Fund (“L-QIF”, Art. 118a ff. CISA, in force since 1 March 2024) answered late and narrowly: it needs no product approval, but is reserved to qualified investors, depends on a supervised administrator, and remains a fund with the duties that status carries.
Into that vacuum stepped the actively managed certificate. An AMC is a structured product (in law a debt instrument) issued by a special purpose vehicle or structuring house, its return linked to a discretionarily managed basket. Economically it is a fund: assets pooled, managed against a strategy, diversified, and charged a performance fee. Legally it is not. Because the investor holds a claim against an issuer rather than a unit in a collective scheme, the AMC falls outside the CISA and escapes the authorisation, custodian, valuation and diversification rules that define a Swiss fund. It is, in substance, the unregulated fund Swiss law declined to legislate — and it now holds a material share of the assets Swiss managers deploy for clients.
What the Guidance says
FINMA Guidance 03/2026, of 3 June 2026, does not regulate the AMC. It regulates the conduct of the licensed portfolio manager who uses it. It is addressed primarily to managers under Art. 17 FinIA, but FINMA extends its findings to managers of collective assets (Art. 24 FinIA), fund management companies (Art. 32 FinIA), securities firms (Art. 41 FinIA), banks and insurers providing portfolio management. In form an awareness notice; in substance, a statement of expectations against which institutions will be measured.
Why FINMA acted
The trigger is quantitative. The supervisory organisations escalated 34 cases to FINMA in 2025, against 23 in 2024 and 4 in 2023; a further 34 came from third-party reports, against 11 and 5. In total FINMA opened 68 supervisory cases in 2025, against 44 in 2024 and nine in 2023. In the worst cases the client assets at risk ran to double- and triple-digit millions of francs, including retirement savings. The recurring products were foreign funds without equivalent supervision, AMCs, and securities of foreign unregulated issuers — instruments whose complexity and illiquidity, in FINMA’s words, had a risk-increasing effect.
Conduct: suitability and conflicts
On suitability, Art. 12 FinSA requires the manager to enquire into the client’s financial situation, objectives, and knowledge and experience, then draw up a risk profile and agree an investment strategy (Art. 17 para. 3 FinSO; margin nos. 13–14 of FINMA Circular 2025/2). Instruments must be suitable against that profile — and FINMA stresses particular care where high-risk, complex or illiquid products, the AMC among them, reach retail portfolios. The cases showed the opposite: over-allocation to single complex products, poor performance reporting, and no real test of fit to the client’s needs and risk appetite.
On conflicts, the concern is the in-house product. A manager must disclose whether the offer comprises only its own instruments or also third-party ones (Art. 10 FinSO), and take measures to avoid the conflicts proprietary use creates (Art. 25 FinSA) — in particular a structured selection process on objective industry criteria (Arts. 24–28 FinSO), and no remuneration that rewards favouring the firm’s own products (Art. 25 let. e FinSO). The files showed exactly what those rules forbid: non-transparent double fee charging, incentives steering assets to proprietary products, and under-diversification against clients’ profiles. Conflicts must as a rule be prevented; where they cannot be, they must at least be disclosed (Art. 25 para. 1 FinSA; Art. 26 para. 1 FinSO).
Risk management and outsourcing
At institutional level, risk management must cover all activities so the principal risks are identified, assessed, controlled and monitored (Art. 12 para. 4 FinIO). FINMA reads this to pull the products’ own risks — concentration, liquidity, valuation, conflict — into the manager’s framework, with risk-based due diligence on each instrument. For unsupervised products it flags concrete warning signs: missing audited accounts, outstanding audit opinions, a change of audit firm, or no reliable data on structure, valuation or liquidity — precisely the deficits of an AMC issued through an orphan SPV.
On outsourcing — its sharpest finding — FINMA observed smaller institutions delegating risk and compliance to unauthorised providers, producing standardised rather than institution-specific controls, with unclear responsibilities and gaps. The law is unambiguous: responsibility for an outsourced control function stays with the institution (Art. 17 para. 1 FinIO), which must retain the resources and expertise to monitor it (Art. 16 para. 3 FinIO). Provider selection demands due diligence, clear responsibilities and full information access (Art. 17 paras. 2 and 4 FinIO), and the mandate’s scope — whether it reaches the risk management of client portfolios and the products in them — must be expressly defined.
The Lexify Take
A perimeter FINMA cannot reach
The Guidance exposes a tension it cannot resolve. FINMA sets demanding conduct and risk standards for the manager who uses an AMC, yet has no statutory handle on the AMC itself. As a debt instrument and not a collective scheme, the certificate sits outside the CISA, and neither the FinSA nor the FinIA gives FINMA authority over its structure, valuation, liquidity or diversification. So it has done the only thing the perimeter permits: regulated the user, not the product. The perimeter problem — a fund-like instrument built to avoid fund law — remains untouched. Read this as a signal, not a settlement.
What managers must now do
The most consequential move is the de facto elevation of the suitability standard. FINMA now treats AMC use as a high-risk activity, and that burden is not discharged by a one-off product approval or a generic warning in the account-opening file. What Art. 12 FinSA and Art. 17 para. 3 FinSO require, read through this Guidance, is an individualised, documented analysis, client by client, of why a specific AMC, with its complexity, illiquidity and issuer exposure, fits that client’s profile and strategy. A manager who cannot produce that file, per client, should expect the allocation to be treated as unsuitable on its face.
The conflict exposure on proprietary AMCs is, in our view, close to existential for the models built on them. Where a manager designs, issues or earns on its own AMC and then allocates client money into it, the conflict is structural, and Art. 25 FinSA does not let disclosure carry the weight: conflicts must be prevented, or clients protected from disadvantage, with disclosure only the residual remedy. Double-charging is the case FINMA has now named, and rewarding staff for steering assets into the house product breaches Art. 25 let. e FinSO directly. The defensible model needs a genuine, documented selection process explaining, against industry criteria, why the in-house product was chosen over an external one. The outsourcing finding cuts the same way: generic external compliance does not satisfy Arts. 16–17 FinIO, and a manager who outsources and disengages has not delegated its risk function but abandoned it, and stays liable for the gap.
Where supervision goes next
FINMA has two routes. It can keep tightening conduct supervision, case by case, until using AMCs compliantly costs about as much as using a regulated fund, closing the gap by enforcement. Or the gap can be closed at source, by broadening the L-QIF or building the lightly regulated collective vehicle Swiss law never provided, drawing fund-like activity back inside a defined perimeter. The first manages the symptoms; the second resolves the problem, but FINMA cannot take that route alone, which is why, for now, it has taken the first.
Connect with us
Thank you for taking the time to read our article. We hope you found it informative and engaging. If you have any questions, feedback, or would like to explore our services further, we’re here to assist you.
Follow Us
Stay updated and connected with us on social media for the latest news, insights, and updates:
Linkedin Lexify
