Access to payment services is particularly important in these digital times. Often a bank account is required. In the EU, every consumer legally resident in the EU has a right to an account (Directive 2014/92/EU). An account may be refused in the EU if a consumer infringes the rules on combating money laundering or terrorist financing (bank accounts in the EU). There is no general explicit legal provision in Switzerland. Is there therefore no legal entitlement to a bank account in Switzerland?
Principle of contractual freedom
The legal relationship between a Swiss bank and its clients is subject to private law and thus to contractual freedom. A bank can therefore terminate business relationships or reject (potential) customers without there having to be a specific reason for doing so. Exceptionally, the contractual freedom or individual aspects thereof may be restricted by contract obligations. These are based on a contract or legal basis, such as the universal service mandate for public-sector banks.
PostFinance's public service mandate
On the basis of its mandate, i.e. to provide basic services for payment transactions, the Federal Supreme Court, in an earlier decision (Federal Court ruling 4A_417/2009 of 26 March 2010), for example, affirmed Swiss Post's obligation to contract in the area of payment transactions. According to the Postal Ordinance, which came into force in 2012, PostFinance can only exclude customers from payment transaction services in individual cases if national or international regulations in the area of financial markets, money laundering or embargo legislation contradict the provision of the service or threaten to cause serious legal or reputational damage.
Is there also an obligation to contract for cantonal banks?
Cantonal banks also have a performance mandate. The question therefore arises as to whether these are also subject to a (conditional) obligation to contract. In a recent decision (Federal Supreme Court ruling, 2C_966/2018 and 2C_967/2018, dated 29 January 2019), the Federal Supreme Court affirmed ZKB's statutory mandate to provide the population of the Canton of Zurich in general, and certain customer groups in particular, with banking services that meet their basic needs. According to the guidelines for the fulfilment of ZKB's performance mandate the following are the general basic needs for such banking services:
- the investment and savings business;
- the mortgage and credit business; and
- payment transactions.
However, for the enforcement of any obligation to contract, the Federal Supreme Court referred to the civil procedure, since the legal relationship between the parties is governed by private law. It therefore remains to be seen whether the ZKB is actually subject to an obligation to contract on the basis of its performance mandate.
A legal right to an account also for businesses?
The statutory performance mandate to which the Federal Supreme Court refers in its decision also stipulates that the range of banking services offered by the ZKB must also take into account the concerns of small and medium-sized enterprises, employees, agriculture and public bodies in particular. Should businesses therefore also have a legal right to an account? Time and again, small businesses, especially start-ups, face the challenge of finding a bank willing to open a business account. The guidelines on opening corporate accounts for blockchain companies, published by the Bankers Association, contributes to solving this challenge by providing banks with assistance. These guidelines are intended to support banks in taking a differentiated approach to the opening of accounts, depending on the type of financing used by the company.
For the future, it remains to be seen whether the Federal Supreme Court will send a signal in this dispute by way of civil proceedings.