The banking perimeter, the FinTech licence and the banks

Deposits and their exceptions

The Banking Act reserves to licensed banks the commercial acceptance of deposits from the public. Under Article 1 paragraph 2 BankA, natural persons and legal entities that are not supervised as banks may not accept deposits from the public on a commercial basis, and the Banking Ordinance defines the commercial basis as the permanent acceptance of more than twenty public deposits or the public advertising for them. A provider of services in Kryptowerte und Digital Assets that holds client funds in Swiss francs or euros on its own accounts, or that holds tokens for clients in a way that gives them only a contractual claim, can therefore fall within the banking perimeter. The Banking Ordinance contains exceptions that matter for the field. Credit balances on client accounts that bear no interest and serve solely to settle client transactions are not deposits. For dealers in precious metals, asset managers and similar undertakings the exception requires settlement within sixty days, whereas securities firms and DLT trading facilities benefit from it without that limit. Since 1 August 2017 an innovation area, commonly called the sandbox, has also allowed the acceptance of public deposits up to a total of CHF 1 million without a licence, and since 1 August 2021 the same applies to crypto-based assets in collective custody. The provider may not engage in interest margin business and must inform the depositors in advance, in writing or in another form that allows proof by text, that it is not supervised by FINMA and that the deposit is not covered by the deposit protection scheme.¹

For providers of custody services the DLT Act drew a more detailed line. Individual custody, in which the tokens are attributed to each client and kept available at all times, requires no banking licence, although the custodian remains a financial intermediary under the Anti-Money Laundering Act. Collective custody is treated differently where the assets are crypto-based assets that actually serve, or are intended by their organizer or issuer to serve, to a significant extent as a means of payment for goods or services or for the transfer of money or value. The Banking Ordinance designates such assets in collective custody as the crypto-based assets referred to in Articles 1a and 1b BankA. A provider that holds them for more than twenty clients on a permanent basis acts on a commercial basis and needs a FinTech or banking licence, unless it remains within the innovation area or an exception applies, such as non-interestbearing settlement balances of securities firms or DLT trading facilities. A custodian that lends the tokens or uses them in its own business no longer keeps them available for its clients and loses the protection of segregation for them.² For custodians outside the banking sector the choice between individual and collective custody, and any contractual permission to use client tokens, therefore decides the licence question.

Notes

1. Art. 1 para. 2 BankA, https://www.droit-bilingue.ch/de-it/9/95/952.0-1-4.html; Banking Ordinance of 30 April 2014 (BankO), SR 952.02, Art. 5 para. 3 lit. c (settlement balances; sixty days for dealers in precious metals, asset managers and similar undertakings; securities firms and DLT trading facilities), https://www.droit-bilingue.ch/de-it/9/95/952.02-5-9.html, and Art. 6 paras. 1 and 2 (commercial basis: "dauernd mehr als 20 Publikumseinlagen oder sammelverwahrte kryptobasierte Vermögenswerte"; innovation area of "höchstens 1 Million Franken", no "Zinsdifferenzgeschäft", prior information of depositors; amendments in force since 1 August 2017 and 1 August 2021), https://www.droit-bilingue.ch/de-it/9/95/952.02-6-11.html. ↩
2. Art. 1a lit. b and Art. 1b para. 1 lit. a BankA ("vom Bundesrat bezeichnete kryptobasierte Vermögenswerte"), https://www.droit-bilingue.ch/de-it/9/95/952.0-1a-5.html and https://www.droit-bilingue.ch/de-it/9/95/952.0-1b-6.html; Art. 5a BankO (crypto-based assets in collective custody under Art. 16 no. 1bis lit. b BankA that serve "in einem erheblichen Umfang als Zahlungsmittel" or for money or value transfer; exceptions for settlement balances and for banks, supervised undertakings and institutional investors), inserted by the ordinance of 18 June 2021 with effect from 1 August 2021, https://www.droit-bilingue.ch/de-it/9/95/952.02-5a-10.html; Art. 6 BankO (above). See also Art. 242a DEBA (above). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of August 2025.