Author: Lawyer Enrico Germano
- Art. 28d para. 2 of the Ordinance
Art. 28d para. 2 of the Ordinance provides a prohibition to act as trustee, nominee shareholder, director, secretary or in a similar capacity for a trust or similar legal institution referred to in paragraph (1), or to cause another person to act as trustee, nominee shareholder, director, secretary or in a similar capacity. The letter of the second paragraph of the provision thus lists several functions comparable to that of a trustee, for which there is a prohibition on acting on behalf of a trust or similar legal institution. It follows that where a person acts as trustee, or one of the other functions covered by the rule and receives instructions from a trustor for the purpose of managing assets on behalf of a beneficiary, this person would be equated with a trustee, irrespective of the name of his function.
- Art. 28d para. 3, 4 e 5 of the Ordinance
The last three paragraphs establish special exceptions to the prohibitions set out in paragraphs 1 and 2.
In particular, Art. 28d para. 3 provides for conditions concerning nationality and residence permit which, if fulfilled by the trustor or the beneficiary, would render the application of the prohibition in para. 1 and 2 void.
In fact, when the trustor or the beneficiary is a Swiss national, a national of an EEA (European Economic Area EEA) member state, a national of the United Kingdom or a natural person holding a temporary or permanent residence permit in Switzerland, an EEA member state or the United Kingdom, the prohibition is lifted. It is, however, useful to point out that, for the exception to apply, it is not necessary that all beneficiaries or all trustors meet the conditions of Art. 28d para. 3, since similarly to Art. 28d para. 1, the trust or similar legal institution is subject to the exception of Art. 28d para. 3 even if only one of the beneficiaries falls within the described categories.
The fourth paragraph of Article 28d also provides an exception to the prohibitions laid down in paragraphs 1 and 2. In this case, however, the derogation does not operate automatically upon fulfilment of certain conditions, but rather the granting of the derogation is subject to the decision of SECO, which, in agreement with the Federal Department of Foreign Affairs (FDFA) and the Federal Department of Finance (FDF), may authorise exemptions from the prohibition in paragraphs 1 and 2 for services that are necessary for particular activities listed in the provision. Specifically, the listed activities are humanitarian activities, civil society activities that directly promote democracy, human rights, or the rule of law in the Russian Federation, the operation of a trust or similar legal form whose purpose is the management of pension funds, insurance contracts or employee participation schemes, or the operation of non-profit organizations, amateur sports clubs and funds for minors or vulnerable adults.
Finally, para. 5 of Art. 28d also provides an exception, albeit only for the prohibition in para. 2.In this case, the exemption, again granted by SECO in agreement with the FDFA and FDF, concerns the continuation of services prohibited by Article 28d(2) for two specific cases. The first, which has now been superseded, concerned the carrying out of transactions necessary to terminate contracts entered into before 28 April 2022 that were incompatible with this Article, provided that such transactions were commenced before 30 May 2022 and concluded by 1 October 2022. The second relates to reasons other than those referred to in subparagraph a, provided that the service providers do not directly or indirectly accept assets or economic resources from, make them available to, or procure other advantages for them from assets placed in a trust or similar legal arrangement.
