The business relationship between a bank and its customers is generally governed by private law and also freedom of contract. The bank is therefore free to choose whether it wishes to enter into a customer relationship. It can also terminate an existing business relationship. Therefore, it can often be particularly difficult for startups which are active in the crypto field or have owners based abroad to find a suitable bank.
Is there a right to open an account with a public law bank?
In contrast to private business banks, some banks established under public law have a duty to enter into a contract arising from their statutory performance obligations.
In its judgment of 26 March 2010 the Swiss Federal Supreme Court established that, in the area of payment transactions, the Swiss Post had an obligation to enter into a contract and that PostFinance is therefore normally required to open and manage bank accounts for Swiss residents.
PostFinance can only refuse to provide its services to a customer under certain circumstances and for important reasons. This is based on the statutory basic service mandate of the Swiss Post, which includes internal payment transactions in Swiss francs for natural and legal persons whose residence or place of business is located in Switzerland. However, the obligation to contract does not entirely solve the problem for businesses with customers or suppliers abroad who need a foreign currency account.
Do Swiss cantonal banks have an obligation to contract?
There is no common statutory position for cantonal banks, as their respective performance obligations are governed by cantonal law. For example, the purpose of the Zurich Cantonal Bank (ZKB) pursuant to the Cantonal Bank Act is broadly drafted. Among other things, it exists to provide the cantonal population with basic banking services. These include investment and savings business, mortgage and lending business as well as payment transactions. The ZKB must explicitly provide services to small and medium businesses and not just natural persons.
In its judgment of 29 January 2019 the Swiss Federal Supreme Court confirmed that the ZKB must provide its services in accordance with the statutory requirements. It also held that the banking relationship is, however, a private law matter and that any claims, including an obligation to contract, must be enforced through civil proceedings.
However, it remains unclear whether and under what circumstances the ZKB could be forced to open a bank account for a business based in Zurich.
Company foundation without a bank account
In Switzerland it has been possible for several years to make capital contributions in cryptocurrencies when founding a company (Founding a Company Using Crypto and Foreign Currencies).
However, on commencing business activities, most companies holding cryptocurrencies and other assets will still need a fiat bank account. Founders should therefore always address the bank account question as early as possible, ideally prior to company foundation.