SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
• funds from more than 20 depositors are accepted. As a result, many business models used, for instance, by payment systems, payment servic - es providers and crowdfunding or crowdlending platforms are considered to involve the solicita - tion and acceptance of deposits and may fall within the scope of the Banking Act, therefore triggering licensing requirements. However, fintech companies do not need a banking licence to hold deposits under CHF1 million (see 2.5 Regulatory Sandbox ). Simi - larly, no banking licence is needed if deposits (regardless of amount) are held for less than 60 days on a settlement account. All other deposit- taking activities require either a fintech licence for deposit-taking not exceeding CHF100 million or a full-fledged banking licence. It is also worth noting that funds linked to means of payment, or to a payment system, do not qualify as deposits, provided that: • the funds serve the purpose of purchasing goods or services; • no interest is paid on them; and • the funds remain below a threshold of CHF3,000 per customer. This exemption may benefit some card payment services and online or mobile payment services. However, they need to ensure that funds stored on user accounts are only for buying goods and services (not for peer-to-peer (P2P) transfers, withdrawals, transfers to a user’s bank account, etc) and never exceed CHF3,000 per customer. Anti-Money Laundering Legislation The Federal Anti-Money Laundering Act (AMLA) defines an intermediary as any natural or legal person who accepts or holds deposit assets
belonging to others, or assists in the investment or transfer of such assets. This covers every - one who carries out credit transactions (such as consumer loans or mortgages, factoring, com - mercial financing or financial leasing) or who pro - vides payment transaction services. This affects many emerging business models, such as mobile payment, blockchain and related applications, cryptocurrencies, automated investment advice, crowdfunding and P2P lending. Under this broad scope, many – if not most – fintech companies qualify as financial intermediaries and are gener - ally subject to anti-money laundering (AML) obli - gations, including compliance with know your customer (KYC) rules (see 2.14 Impact of AML and Sanctions Rules ). Swiss Financial Services Act, Swiss Financial Institutions Act The Swiss Financial Services Act (FinSA) and Swiss Financial Institutions Act (FinIA) came into force on 1 January 2020. While the purpose of FinIA is to provide a new legal framework gov - erning most financial institutions (ie, asset man - agers, trustees, managers of collective assets, fund managers and securities firms), FinSA is designed to regulate financial services in Swit - zerland, whether provided by a Swiss-based business or on a cross-border basis from Swit - zerland or to clients in Switzerland. The rules are largely based on EU directives – the Mar - kets in Financial Instruments Directive (MiFID II), the Prospectus Directive and Packaged Retail Investment and Insurance-Based Products (PRI - IPs) – with adjustments tailored to the Swiss market. In a nutshell, with regard to fintech, the new legal framework brought additional regulatory requirements to the extent that fintech compa - nies provide financial services in Switzerland or to Swiss clients (application of FinSA) or provide
808 CHAMBERS.COM
Powered by FlippingBook