SWITZERLAND Law and Practice Contributed by: Oliver Widmer and Niku Gholamalizadeh, Pestalozzi
The FINMA enforces these provisions against all mar- ket participants – both individuals and legal entities – regardless of whether they are subject to prudential supervision. Prohibited behaviour includes trading on material non-public information and any conduct designed to create artificial prices or mislead the mar- ket. The key distinction compared to traditional securities is one of scope. The FMIA market abuse provisions apply to financial instruments within the scope of the FMIA. Crypto-assets that do not qualify as securi- ties – such as pure payment tokens like bitcoin – may fall outside the specific FMIA market abuse regime. Where crypto-assets do qualify as securities – such as certain asset tokens – the full FMIA market abuse regime applies in the same way as for traditional secu- rities. Recent regulatory discussions involving FINMA have highlighted increasing attention to potential market abuse risks in crypto markets, although no dedicated crypto-specific market abuse regime has been intro- duced to date. 2.6 Non-Compliance FINMA enforces Swiss financial market laws actively. In 2024, FINMA carried out 235 investigations relating to the unauthorised acceptance of public deposits, including by fintech business models. Also, FINMA carried out 232 investigations related to unauthorised financial intermediation, lack of SRO affiliations and unauthorised fintech business models (separate data on the fintech sector was not provided by FINMA). FINMA’s enforcement activities may, in particular, result in criminal reports to law enforcement agencies, activity bans, withdrawals of licences, the opening of bankruptcy proceedings or the publication of orders against institutions. FINMA is willing to consistently take action against financial service providers in the fintech area that vio- late or circumvent supervisory laws, such as the bank- ing, securities or AML regulations. FINMA is willing to take action against foreign firms providing services into Switzerland without
the required authorisation. In 2024, FINMA issued requests for administrative assistance from foreign countries to prosecute in 34 cases. FINMA’s enforcement stance is unlikely to soften. It has signalled a continued willingness to act against firms that violate or circumvent supervisory laws in the fintech and crypto space. The growing influence of MiCA for Swiss firms serving EU customers may also indirectly drive further regulatory alignment domesti- cally. 3. Licensing and Set-Up Requirements 3.1 Licensing Requirements Neither blockchain technology nor cryptocurrencies are currently governed by any sector-specific laws or regulations. Therefore, existing laws and regulations apply to the new blockchain technology and, respec- tively, blockchain-based business models. Conse- quently, before a blockchain-based business model is implemented or digital assets are marketed, the project owner should be aware that several statutes may apply in Switzerland (in addition to foreign laws). Licensing requirements are triggered when a block- chain or crypto-asset business crosses defined activ- ity thresholds, such as accepting public deposits, managing assets, operating a trading platform, or providing payment services. The applicable licence depends on the business model and token classifi- cation, and may include a banking licence, securi- ties firm licence, DLT trading facility licence, fintech licence or payment system authorisation. Swiss licensing requirements apply to activities car- ried out on a professional basis in or from Switzerland. Foreign firms targeting Swiss clients or operating from Switzerland may trigger Swiss licensing requirements regardless of where they are formally incorporated, if they maintain a permanent physical presence in Swit- zerland. 3.2 Set-Up Requirements Swiss licensing requirements are highly activity driv- en and depend on the specific regulated activity and corresponding licence category. Entities whose busi-
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