PostFinance’s public service duty: when foreign sanctions do not justify the debanking of clients from universal payment services in Switzerland

Legal basics: why PostFinance is (generally) not free to refuse access to the universal service

Swiss law treats access to universal payment services forming part of the universal service. As a rule, access must be granted; refusal is the exception. Although PostFinance operates as a FINMA‑supervised company limited by shares, it remains the designated provider of the statutory universal payment service. As such, it may depart from this obligation only in the situations exhaustively listed under Art. 45 of the PSO, namely where (a) national or international provisions in the area of financial market, anti-money laundering or embargo legislation conflict with the provision of the service, or compliance with such legislation would result in a disproportionately high burden, or (b) there is a risk of serious legal or reputational harm.

Key takeaways

1) Foreign sanctions are not automatically decisive

The Supreme Court drew a clear distinction between foreign sanctions exposure and “national or international provisions” applicable in Switzerland within the meaning of Art. 45 PSO. US or UK sanctions alone do not constitute a legal conflict justifying refusal of domestic universal payment services. The Commercial Court of Bern (the court of first instance in this case) had correctly held that a “conflict” within the meaning of Art. 45(1)(a) PSO can only be understood as an actual prohibition, by a legislation applicable in Switzerland, of the business relationship, as would be the case, for example, with persons listed on a Swiss or UN sanctions list (para. 5, in particular para. 5.2.2-5.2.4).

2) “Disproportionate burden”: enhanced compliance duties alone are not a sufficient ground for refusal and must be proven concretely

A high client risk profile may entail enhanced monitoring and due diligence obligations. However, increased compliance work per se does not constitute a statutory ground for refusal under Art. 45(1) PSO, as it does not in itself prevent the provision of payment services; a refusal is justified only where compliance would be legally impossible or would entail a genuinely disproportionate burden (to be demonstrated specifically).

A refusal based on disproportionate effort requires substantiated evidence relating to the specific client and services provided – assessed against what is operationally typical for enhanced due diligence relationships (and not against low‑risk mass‑market customers; para. 7.2).

In the specific case, the lower court rightly held that PostFinance’s assertion and evidence was insufficient in this respect. PostFinance relied on internal estimates indicating that its compliance units required an average of four hours to open an account for so‑called high‑risk business relationships and that 5.43 hours were allocated for ongoing monitoring, compared to around 18 minutes for account openings in the case of a standard customer, where no annual review and thus no further effort is required (para. 7.3).

This comparison was held to be inadequate. For the assumption of a “disproportionately high burden” within the meaning of the second sentence of Art. 45(1)(a) PSO, it is not sufficient that the effort required is materially higher than for an “unproblematic” average customer. Rather, it must also exceed the average effort normally required for categories of clients already subject to enhanced due diligence, such as politically exposed persons (PEPs) or so‑called high‑risk business relationships (para. 7.3).

3) Serious legal or reputational damage must be credibly likely

To rely on Art. 45(1)(b) PSO, PostFinance must demonstrate a real and serious probability of legal or reputational harm, i.e., either financial detriment or loss of rights and privileges, or impairments of public standing (para. 8.1). Speculative enforcement scenarios or general sensitivity around foreign sanctions do not suffice. With regard to possible US secondary sanctions (which PostFinance invoked), the lower court held that the US authorities have broad discretion, and that a postal account denominated in Swiss francs would be unlikely to attract their attention, particularly since the client’s payments (for real estate costs, cleaning services, medical expenses, telecommunications and taxes) were limited to domestic transfers in Swiss francs, and there were no indications that he might carry out transfers of a sensitive nature. Accordingly, the lower court found that any serious risk of legal harm arising from US sanctions had not been established (para. 8.2).

Why this decision matters

For PostFinance and other service‑public providers, the ruling confirms that exceptions to the statutory universal payment service are strictly confined and must be proven, not presumed. Compliance concerns must be translated into Swiss‑law‑relevant prohibitions or concrete risks, supported by evidence, to permit a denial of universal payment services by PostFinance.

For individuals affected by foreign sanctions but not sanctioned in Switzerland, the decision reinforces access to domestic payment services falling within the universal service. The Court explicitly rejects the idea that clients presenting increased compliance risks may be systematically excluded from the universal payment service. The threshold for refusal remains high, as it should be in a service-public context.

This decision is particularly significant given the increasing “debanking” challenges faced by numerous clients in Switzerland and abroad. It underscores that access to universal payment services cannot be curtailed on the basis of generalised risk perceptions or external regulatory pressures alone, but requires a substantiated and legally grounded assessment in each individual case.