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If either of the following applies to anyone who accepts 'deposits from the public on a commercial basis' under the Swiss Banking Act:

• deposits of more than 20 investors are actually held; or
• the person or entity publicly announces to a non-limited number of persons that it is willing to accept these funds (regardless of the final actual number of investors). ¹

Fintech companies accepting or raising funds from the public, such as crowdfunding or ICOs, may need a bank licence. A bond issue or capital contribution that does not entail a repayment obligation does not qualify as a deposit, so under Swiss law, ICOs are possible – under certain conditions.¹

In 2017, the Swiss government (the Federal Council) amended the Ordinance on Banks and Savings Banks (the Banking Ordinance) to allow exemptions from licensing requirements. As from 1 August 2017, the holding of client funds (of more than 20 investors and for a period longer than 60 days) no longer triggers banking licensing requirements (as it is no longer deemed to meet the requirement of being 'on a commercial basis') if certain requirements are met:

• the funds do not at any time exceed 1 million Swiss francs;
• the funds are neither reinvested nor interest-bearing (with exceptions); and
• the depositors have been informed in writing or otherwise in text form prior to making the deposits that their funds are not covered by the Swiss depositors protection regime and that the institution is not supervised by FINMA. ¹

With regard to point (a), the threshold will be calculated on the basis of the aggregate deposits held at any given period.¹

Funds on settlement accounts may also be held for 60 days (previously only seven days) if they are not interest-bearing. This provision, in particular, enables crowdfunding companies to hold assets for longer periods without requiring banking licenses.¹

A special licence was also introduced on 1 January 2019: firms that accept deposits of up to 100 million Swiss francs (including, in the future, crypto-based assets), but do not pay interest on them, may qualify for a 'banking licence light', a licence that has fewer requirements than a bank license. Fintech companies are not the only ones eligible for this new licence, but it is often referred to as a 'fintech-license'.¹

It is possible for AML regulations and provisions to apply even if neither a banking license nor a securities house licence is required. Financial intermediaries (banks, securities houses, fund management companies, and insurance companies) and institutions that carry out 'financial intermediary activities' (e.g., asset managers and investment advisers with power of attorney) are subject to Swiss AML regulations. A fintech company participating in financial intermediary activity must register with a recognised Swiss AML SRO or submit to direct FINMA supervision regarding AML matters, and adhere to the relevant obligations (eg. verifying customer identity and determining beneficial ownership). Article 4, Paragraph 1, Letter b of the revised AML Ordinance (effective since 1 August 2021) provides that individuals engaging in regular virtual currency transfers to other parties may qualify as financial intermediaries. Some of the AML duties entail sanctioning provisions under criminal law, and these provisions are equally applicable to fintech companies. The FINMA Supervisory Notification 02/2019 of 26 August 2019 states that token transfers are subject to identification of the recipient and the beneficial owner, without a minimum threshold. Token transfers in Switzerland are therefore subject to one of the strictest anti-money laundering regimes in the world.¹

Lending in Switzerland

Fintech in Switzerland

Fintech in other countries

Notes

1. https://thelawreviews.co.uk/title/the-financial-technology-law-review/switzerland