The Internet is becoming an increasingly important channel of distribution and communication, and this development is affecting the financial sector as well. In most industries, online shops are now indispensable. In comparison, the banking sector still offers enormous potential, as only a few financial products can be processed via the internet in e-banking. The legal framework for a possible account opening via the Internet is explained in the following.
A. Legal Relations
The applicable legal provisions are to be determined in two different ways. On the one hand, the (contractual) relationship between the customer and the bank1and, on the other hand, the public relationship based on the supervisory activities of the regulatory authority and the banks2 must be considered.
B. Federal regulations
The starting point is the thematically obvious bank customer law. It is enshrined in various decrees, including the BV, ZGB, OR, DSG and BankG. As a criminal provision, bank client confidentiality prohibits the disclosure of client data to third parties.3 For an online account opening, the legislation on the prevention of money laundering is also applicable. However, this refers to an originally private body of rules and regulations, the agreement on the code of conduct for due diligence of the banks (VSB 08). The requirements for identification, which can be found in the duty of care agreement, are generally binding due to the reference to the FINMA Money Laundering Ordinance.
C. Circulars
In addition to the provisions of federal law, FINMA has issued guidelines by means of circulars which, among other things, apply to outsourcing offences. In addition, the supervisory authority has issued risk management principles regarding the confidentiality of electronic customer data.
A. Basis of account opening
The account opening process can be divided into several phases. The basis is an offer by the bank or an application by the customer to the bank to open an account. With regard to the form of the conclusion of a contract, the principle of freedom of form, which also applies to the account opening, applies in Switzerland. Banks, however, require a signature from the bank customer for evidential purposes, acceptance of the GTC as well as to meet the due diligence requirements set out in the duty of care agreement.
B. Signature
In Switzerland, the signature in electronic transactions can be replaced by a digital signature. In order to obtain a digital signature, however, a corresponding certification authority must first be visited, meaning that the user must, however, already leave the electronic path again, and consequently a media interruption occurs. The SuisseID is therefore suitable (at least not yet) for an account opening to be completed exclusively via the Internet. This raises the fundamental question of whether a signature is necessary during the process of opening an account. For example, would it not be possible to replace the signature similar to online shopping by ticking the appropriate boxes? There is no compulsory legal form, at most, the evidential value could be doubted.
C. Identification
Under the money laundering legislation, identification is a key feature of account opening. According to Swiss law, this requires that both the bank employee and the bank customer are physically located in the same place. As a result, identification via the Internet in Switzerland is currently not permitted. In Germany, the legal situation was identical to ours until the spring of 2014. However, since March 2014, the German Federal Financial Supervisory Authority (BaFin) has waived the requirement of physical presence. For a complete identification a visual contact, which can also take place via video transmission, must exist according to BaFin. In addition, a linguistic exchange is necessary. Finally, the customer is identified by presenting a means of identification in front of the webcam. The identity document must therefore have security features that can be checked by the employee even without physical contact. This broader interpretation has made video identification possible in Germany, and is now being used by various banking institutions.Consequently, for video identification, the concept of personal presence would have to be expanded. Since the legislation on money laundering is very similar in Germany and Switzerland, a similar interpretation is conceivable in Switzerland. At the moment, however, Finma seems to still be critically opposed to video identification, which is reflected both in its hesitation to issue a clear statement and in various press reports. However, it is also conceivable that Finma will pursue a different approach and possibly present an innovative procedure together with the banks.
- This relates to banking privacy law.
- Thematically this forms part of banking supervisory law.
- If required, customer data can be passed on to third parties provided that the requirements of FINMA-Circ. 2008/7 and 2008/21 are met.