SWITZERLAND Law and Practice Contributed by: Lukas Morscher and Lukas Staub, Lenz & Staehelin
Fintech licences involve less stringent regula - tory requirements than a banking licence. Strict banking equity ratio requirements, as well as liquidity requirements, do not apply. In addi - tion, there are lower minimum capital require - ments: fintech licence holders must maintain capital amounting to 3% of public deposits, but in any case not less than CHF300,000. In 2023, FINMA published its revised guidelines for the fintech licence, setting out the information and documentation needed to apply for one. These include a list of all participants holding a direct or indirect interest of 5% in the applicant, infor - mation on the governing bodies and the activi - ties of the company, plus a three-year financial forecast. To be clear, the fintech licence is not a banking licence, and companies operating under such a licence do not qualify as banking institutions and may not be designated as such. By extension, client deposits are not covered by the Swiss deposit protection scheme, and clients must be duly informed of this, as well as of the atten- dant risks. In March 2020, FINMA granted the first fintech licence to an app-based bank called Yapeal. The other three companies holding a fin - tech licence are Bivial, Relio and SR Saphirstein. At least two more former fintech licence holders have already been put into liquidation. 2.6 Jurisdiction of Regulators FINMA is generally responsible for authorisation, supervision and enforcement under Swiss finan - cial market laws. FINMA adopts a risk-oriented approach to supervision, meaning examina - tions depend on the risk posed by the respec - tive financial market participant. The applicable financial market laws are enforced by FINMA, which may include administrative measures where necessary. FINMA’s powers include pre - cautionary measures and measures to restore
compliance with the law, withdrawing authorisa - tion, liquidating unauthorised companies, issu - ing industry bans and ordering the disgorgement of profits generated illegally. It can also publish final decisions naming those involved. Since naming companies or individuals is restricted by law, FINMA generally only publishes information on ongoing or completed enforcement proceed - ings if there is a particular public interest – eg, to protect investors, creditors or policyholders. Besides FINMA, criminal prosecution authori - ties and self-regulatory organisations (SROs) are involved in enforcing financial market laws. Where irregularities fall under criminal law, FINMA may file a complaint with the compe - tent authorities (Federal Department of Finance (FDF), Office of the Attorney General and can - tonal prosecutors). There are other authorities, such as the Competition Commission and the Federal Data Protection and Information Com - missioner, which may also enforce relevant laws. 2.7 No-Action Letters FINMA has a practice of issuing no-action letters upon request for specific factual circumstances presented to FINMA in detail in writing. FINMA only issues no-action letters as regards regulato - ry aspects under laws that FINMA enforces (eg, AMLA, FinIA, the Banking Act) but not for any other laws (eg, data protection laws). No-action letters are subject to a fee. Their validity is limited to the requesting party and only to the extent the actually implemented business fully corre - sponds to the factual circumstances presented to FINMA. Due to the high demand for no-action letters in the fintech sector (approximately 100 per year according to FINMA), FINMA has cre - ated a dedicated team for fintech matters that, among others, deals with these requests from the fintech sector. Note that with other Swiss
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