Landmark ruling on the basic provision of payment services by PostFinance

Nater Dallafior, led by Patrik Salzmann, successfully represented a Russian national resident in Switzerland who had been excluded from payment services by PostFinance due to sanctions imposed by the United States and the United Kingdom.

Swiss Post is legally mandated to ensure the basic provision of payment services. But PostFinance invoked the exceptions to this obligation under the Postal Ordinance to close the account of the client. The Commercial Court of the Canton of Bern held that the exclusion of the client was unlawful and ordered PostFinance to provide a payment account as well as cash deposit facilities of up to CHF 15,000 per month. PostFinance appealed the decision to the Swiss Federal Supreme Court, which dismissed the appeal.

The Federal Supreme Court held that foreign sanctions do not, as such, create an immediate conflict with Swiss regulatory provisions. It held that enhanced due diligence obligations can generally be met through appropriate measures. Moreover, PostFinance failed to demonstrate that compliance with the regulatory requirements would lead to disproportionately excessive costs. According to the Federal Supreme Court, a merely noticeably higher level of effort compared to an unproblematic average customer is not sufficient to justify denying access to basic payment services. In this respect, the Federal Supreme Court expressly contradicted the Explanatory Report of the Federal Department of the Environment, Transport, Energy and Communications of 10 March 2020 on the partial revision of the Postal Ordinance. Rather, the effort required must also exceed the average level of effort typically associated with categories of customers for whom enhanced checks are necessary to ensure compliance with regulatory requirements (such as PEP or high-risk business relationships). The Federal Supreme Court also rejected the argument that the customer relationship would expose PostFinance to serious legal or reputational risks. This decision strengthens the application of the principle of territoriality, according to which foreign sanctions do not have direct effect in Switzerland.

The media release and the judgment of the Federal Supreme Court are available via the provided links.