SWITZERLAND Law and Practice Contributed by: Oliver Widmer and Niku Gholamalizadeh, Pestalozzi
ness falls within the scope of banking regulation must obtain a full banking licence, which entails extensive regulatory requirements, including minimum capitali- sation, robust governance structures, fit and proper criteria for key individuals, comprehensive risk man- agement frameworks, and adequate organisational arrangements. Comparable prudential and organisa- tional requirements apply to securities firms licensed under the FinIA. A simplified fintech licence is available to entities that accept public deposits of up to CHF100 million, pro- vided such deposits are neither invested nor inter- est bearing. This regime entails reduced capital and organisational requirements compared to a full bank- ing licence. Firms that professionally provide custody or safekeeping of crypto-assets for clients are gener- ally required to hold at least a fintech licence. Licensing of DLT trading facilities is governed by the FMIA. FINMA has issued specific admission, opera- tional and technical requirements for such facilities, including mandatory reviews of smart contract code and requirements regarding operational resilience and business continuity. Given the complexity and supervisory expectations associated with Swiss licensing procedures, early engagement with FINMA is both common practice and strongly recommended. 3.3 Change of Control Under Swiss law, there are no specific change in control requirements applicable to digital asset firms. Instead, digital asset firms are subject to the same general rules as other firms outside the blockchain and cryptocurrency industry. If the business model is subject to licensing requirements in Switzerland, change in controls regularly trigger notification or authorisation requirements. 3.4 Passporting Swiss licences typically cannot be passported into other jurisdictions. As Switzerland is neither a mem- ber of the EU nor the EEA, Swiss firms do not ben- efit from EU passporting rights – meaning a FINMA licence does not grant automatic access to EU mar- kets. Swiss companies wishing to serve EU clients
must typically set up a separate EU subsidiary to ben- efit from MiCA passporting rights across EU member states or implement EU requirements as minimum standards. Switzerland has entered into the Berne Financial Ser- vices Agreement (BFSA) with the United Kingdom, which establishes a reciprocal framework enabling Swiss and UK financial service providers to offer cross border investment services to professional clients and certain high net worth individuals without establishing a local presence, within a defined and limited scope of services. For Swiss service providers, the agreement facilitates the provision of selected investment ser- vices into the United Kingdom, and vice versa, subject to compliance with the applicable conditions of the agreement. Financial service providers wishing to rely on the Berne Financial Services Agreement must conduct prior notification or registration with the competent supervisory authority in the host state. The agreement is based on mutual reliance on home-state regulation and supervision and does not provide for passporting or unrestricted market access beyond its expressly defined scope. Switzerland does not have a specific cross-border regime for crypto-asset services, but foreign firms targeting Swiss clients may trigger Swiss licensing requirements depending on the nature and scale of their activities. Since Switzerland is not an EU or EEA member, MiCA does not apply directly, but Swiss firms serving EU-based customers must comply with MiCA requirements when operating in the EU. The rules applicable to marketing of digital assets are dependent on the initial qualification of the digi- tal assets. In general, marketing activities in Switzer- land are subject to the conduct rules under the Swiss Unfair Competition Act. In addition, specific financial market regulatory pro- visions, particularly the special requirements of the 4. Cross-Border Services 4.1 Marketing
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