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Post-financing would incur a disproportionate effort if the financial institution had to keep an account for Vekselberg – this is what the court wrote in its ruling delivered to the Keystone-SDA news agency on Thursday.
Due to this disproportionate effort, it is appropriate to grant Postfinance an exception to the legal mandate to ensure a basic supply of payment services. This mandate can be found in the Federal Postal Law and the associated ordinance.
Vekselberg can still refer the judgment of the Berne commercial court to the federal court.
Account closed after two months
With reference to the basic service mandate, Vekselberg filed a lawsuit against Postfinance in February last year. As can be seen from the ruling, Postfinance first responded to a request from Vekselberg to open an account in October 2018, but closed the account two months later.
Postfinance justified this by stating that the business strategy does not match Vekselberg’s profile and that Postfinance is unable to meet all due diligence obligations.
The background for this is that the United States imposed sanctions on seven Russians in April 2018, including Vekselberg, who lives in Zug. Washington accuses them of getting rich off the Kremlin’s authoritarian and anti-Western policies. After the sanctions, Vekselberg cut his stake in Swiss industrial groups so they could escape US sanctions.
In mid-September this year, lawyers Vekselberg and Postfinance met before the commercial court in Bern. On the occasion of this main hearing, the court unsuccessfully tried to persuade the parties to reach an agreement.
Legally bound?
Vekselberg’s attorney said in court at the time that Postfinance was legally obligated to provide an account to everyone residing in Switzerland. The investor needs an account to earn a living here and pay taxes, for example.
Postfinance’s lawyer referred in particular to a passage in the General Terms and Conditions (GTC) that states that the institute can exclude clients under certain conditions. This occurs when national or international provisions contradict the provision of services or when there is a threat of serious legal or reputational damage.
As can be seen from the judgment of the Berne Commercial Court, it does not consider that there is a risk of serious legal or reputational damage for Postfinance in the event of a business relationship with Vekselberg. The court also does not believe that Postfinance faces secondary sanctions from the US authorities.
“Disproportionate effort”
However, based on witness testimony in mid-September, the court concluded that Postfinance would have to face “an overwhelmingly disproportionate effort.” Thus, the institute is released from its basic mandate vis-à-vis Vekselberg. An article in the Postal Ordinance supports the exemption clause in the Postfinance GTC.
Postfinance welcomed the ruling in a statement Thursday. “In order for us to comply with all legal and regulatory requirements, it is important to us that we are able to refuse to open and continue a payment account in justified cases despite the basic service mandate,” the institute writes. (pbe)
