NFT Legal Framework in Switzerland: Classification, Ownership, and Compliance

Switzerland’s approach to NFT regulation exemplifies the country’s broader strategy of adapting existing legal frameworks to accommodate technological innovation rather than imposing purpose-built regulatory regimes. The result is a legal environment that provides meaningful clarity for NFT creators, platforms, and collectors whilst avoiding the prescriptive rigidity that characterises less nuanced jurisdictions.

Understanding the Swiss NFT legal framework requires examining how existing bodies of law — securities regulation, intellectual property, tax, anti-money laundering, and consumer protection — apply to non-fungible tokens across their varied applications. The analysis is necessarily context-dependent: the legal treatment of an NFT artwork differs substantially from that of an NFT representing a real-world asset or an NFT serving as an event ticket.

FINMA Classification Framework

The Swiss Financial Market Supervisory Authority (FINMA) classifies tokens according to their economic function, applying a substance-over-form analysis that looks through marketing characterisations to assess what rights and expectations a token actually confers.

FINMA’s 2018 ICO Guidelines, subsequently refined through supplementary guidance and no-action letters, established three categories that remain the foundation for NFT classification.

Payment Tokens

NFTs rarely qualify as payment tokens — their non-fungibility inherently limits their utility as media of exchange. However, an NFT that functioned primarily as a means of payment (perhaps a high-denomination digital bearer instrument) could theoretically receive payment token classification, triggering AML obligations under the Anti-Money Laundering Act (AMLA) without necessarily invoking securities regulation.

Utility Tokens

NFTs providing access to a specific service or application may qualify as utility tokens. An NFT conferring membership in a social DAO, granting access to a digital platform, or functioning as an event ticket serves a utility function. FINMA generally applies lighter regulatory treatment to utility tokens, though it scrutinises characterisations carefully — an NFT marketed as a utility token but purchased primarily for speculative appreciation may be reclassified based on purchasers’ reasonable expectations.

The critical distinction is whether the token’s value derives primarily from its utility function or from expectations of price appreciation. An NFT ticket to a specific event has clear utility value. An NFT membership token for a platform that does not yet exist is more likely to be treated as an investment instrument regardless of its utility label.

Asset Tokens

NFTs representing economic claims — ownership stakes in assets, revenue participation rights, governance authority over treasury management — qualify as asset tokens and are treated as securities under Swiss law. This classification triggers:

• Prospectus requirements under the Financial Services Act (FinSA) for public offerings
• Licensing requirements for platforms facilitating secondary trading under the Financial Market Infrastructure Act (FinMIA)
• Conduct rules governing distribution, including suitability and appropriateness assessments under FinSA
• Custodial obligations for entities holding client assets

The DLT Act’s introduction of ledger-based securities (Registerwertrechte) under Article 973d of the Code of Obligations provides the legal mechanism for NFTs classified as asset tokens to constitute fully recognised securities under Swiss private law. This recognition is particularly significant for RWA tokenisation and investment DAO applications.

Hybrid and Novel Classifications

Many NFTs resist clean categorisation. An NFT artwork may be a pure collectible (no specific regulatory classification), a utility token (if it grants access to creator communities), or an asset token (if it confers rights to revenue from the artwork’s commercial exploitation). FINMA evaluates each case individually, though published guidance and no-action letters provide indicative analysis for common structures.

Intellectual Property Rights

Swiss copyright law (Urheberrechtsgesetz, URG) governs the intellectual property dimensions of NFTs with implications that many market participants inadequately understand.

Copyright in the Underlying Work

The creation of an NFT does not create copyright — copyright arises automatically upon creation of the underlying work (artwork, music, text, software) and vests in the creator. Minting an NFT is a separate act that creates a token referencing or containing the work but does not, absent explicit contractual provision, transfer the copyright.

This distinction carries practical consequences. An NFT purchaser who acquires a digital artwork NFT owns the token — and thereby has certain property rights over the token itself — but does not automatically acquire the right to reproduce the artwork, create derivative works, publicly display the artwork commercially, or license the artwork to third parties.

Licensing Frameworks

Swiss NFT platforms and creators have developed licensing frameworks that specify which rights transfer with NFT ownership. These range from:

Restrictive personal licences — the purchaser may display the artwork for personal, non-commercial purposes only. All reproduction, adaptation, and commercial exploitation rights remain with the creator.

Expansive commercial licences — the purchaser receives broad rights to reproduce, adapt, and commercially exploit the artwork, limited only by specific exclusions (typically preventing the creation of competing NFT collections using the licensed art).

Creative commons integrations — some NFT projects release underlying art under Creative Commons licences, granting broad usage rights to all holders and, in some cases, to the public regardless of token ownership.

The licensing terms typically appear in NFT metadata, platform terms of service, or separate licence agreements referenced by on-chain pointers. Swiss law treats these as contracts, subject to standard contractual interpretation principles under the Code of Obligations.

Moral Rights

Swiss copyright law grants creators inalienable moral rights (Urheberpersoenlichkeitsrechte) — the right to be identified as the creator and the right to object to derogatory treatment of the work. These rights cannot be transferred, even through explicit contractual provision, and persist regardless of NFT ownership changes. An NFT purchaser who modifies a digital artwork in a manner that prejudices the creator’s honour or reputation may face moral rights claims under Swiss law.

Property Law Treatment

The property law treatment of NFTs under Swiss law is evolving but increasingly coherent.

NFTs as Movable Property

Swiss doctrine increasingly treats NFTs as digital assets analogous to movable property (bewegliche Sachen), though technically outside the Civil Code’s definition of “things” (Sachen), which requires physical materiality. The DLT Act addressed this gap for NFTs qualifying as ledger-based securities, granting them legal recognition as transferable assets with property-law-like protections.

For NFTs that do not qualify as securities — pure collectibles, utility tokens — the property law treatment is less settled. Swiss courts have not yet produced definitive rulings on the property law status of non-security NFTs, though academic commentary and FINMA guidance suggest analogous treatment is likely.

Transfer and Ownership

Ownership of an NFT transfers through on-chain transaction — the blockchain serves as the definitive record of ownership, analogous to a register for registered securities. Swiss law’s recognition of ledger-based securities under Article 973d CO provides explicit legal support for this transfer mechanism for security-classified NFTs.

For non-security NFTs, transfer is governed by contractual assignment principles under the Code of Obligations. The on-chain transaction constitutes evidence of the transfer but may not, in all circumstances, constitute a legally perfected transfer under property law.

Bona Fide Acquisition

Swiss property law protects bona fide purchasers who acquire property in good faith, even from non-owners. The applicability of this principle to NFTs — particularly in cases of wallet compromise or fraudulent minting — raises questions that Swiss courts have not yet definitively resolved. The transparent provenance that blockchain provides may actually work against bona fide acquirer protection, as on-chain records of irregular transactions (thefts, exploits) could negate the good faith required for protection.

Tax Treatment

Swiss taxation of NFTs varies by canton, taxpayer classification, and NFT type, but certain principles apply generally.

Individual Taxpayers

Capital gains on NFTs held as private assets are tax-exempt for individual taxpayers under Swiss federal tax law — the same treatment afforded to capital gains on shares, real estate (with certain cantonal modifications), and other capital assets.

The critical question is whether NFT activity constitutes private asset management or professional trading. The Federal Tax Administration applies multi-factor analysis considering trading frequency, holding periods, leverage usage, and reliance on trading income. Active NFT trading — frequent purchases and sales, particularly if conducted using borrowed funds — risks professional trading classification, converting tax-exempt capital gains into taxable business income.

Income from NFTs — staking rewards, rental income from tokenised property, royalties from IP NFTs — is taxable as income regardless of how it is received.

Wealth tax applies to NFTs held at year-end. Valuation follows market price where available; for illiquid NFTs, taxpayers must estimate fair market value, which cantonal tax authorities may challenge.

Corporate Taxpayers

Corporate entities holding NFTs are subject to standard corporate tax treatment. All gains — whether capital or income — are taxable as business income. Losses are deductible against other business income, providing more symmetric tax treatment than the private asset regime.

VAT

NFTs are subject to Swiss VAT analysis based on their economic function. Digital services — including NFT sales that constitute supplies of digital content — are generally subject to VAT at the standard rate (currently 8.1%). However, the treatment of NFTs as collectibles, financial instruments, or mere data records could affect VAT liability, and specific guidance from the Federal Tax Administration remains limited.

Anti-Money Laundering Compliance

The Anti-Money Laundering Act (AMLA) applies to financial intermediaries, and NFT platforms may qualify as financial intermediaries depending on their activities.

NFT marketplaces facilitating buying and selling may constitute financial intermediation if they handle client funds or execute payment transactions. Platforms that merely connect buyers and sellers without handling funds may fall outside AMLA scope, though FINMA’s expansive interpretation of financial intermediation counsels caution.

NFT issuers creating and distributing NFTs classified as securities are financial intermediaries subject to full AMLA compliance, including customer identification (KYC), transaction monitoring, and suspicious activity reporting.

Peer-to-peer transactions between individuals transacting directly on blockchain networks do not involve financial intermediaries and therefore do not trigger AMLA obligations for the transacting parties. However, the on-ramp and off-ramp services converting between fiat currency and crypto assets are regulated intermediaries subject to AMLA requirements.

FINMA’s 2024 guidance on decentralised financial intermediation clarified that AML obligations follow economic function. An NFT platform that performs financial intermediation functions — regardless of its technical decentralisation — must satisfy corresponding AML obligations.

Consumer Protection

Swiss consumer protection law applies to NFT transactions involving consumers, introducing obligations that purely crypto-native perspectives sometimes overlook.

Unfair competition law (UWG) prohibits misleading marketing practices, including false scarcity claims, misleading representations of NFT utility or value, and deceptive pricing practices in NFT sales.

Product liability may apply to NFTs marketed as functional products — particularly utility NFTs that provide access to services. If the NFT fails to deliver its marketed functionality, purchasers may have claims under product liability or contractual warranty provisions.

Data protection under the Federal Act on Data Protection (FADP) applies to NFT platforms collecting personal data. The tension between blockchain transparency and data protection principles — particularly the right to erasure — creates compliance challenges for platforms operating on public blockchains.

Enforcement and Dispute Resolution

Swiss courts provide the ultimate enforcement mechanism for NFT-related disputes, though the cross-border nature of blockchain transactions complicates jurisdictional analysis.

For disputes involving Swiss-domiciled parties, Swiss courts exercise jurisdiction under standard private international law principles. The choice of law depends on the characterisation of the dispute — contractual claims follow the law chosen by the parties or the law most closely connected to the contract; tortious claims follow the law of the place of the harmful act.

Alternative dispute resolution — particularly arbitration — has gained traction for NFT disputes. The Swiss Chambers’ Arbitration Institution and specialised blockchain dispute resolution bodies offer arbitration services tailored to digital asset disputes.

Smart contract-based dispute resolution — where designated arbitrators resolve disputes through on-chain mechanisms — represents an emerging approach, though the enforceability of such mechanisms under Swiss law remains untested.

Outlook

Switzerland’s NFT legal framework continues to evolve through regulatory guidance, court decisions, and legislative refinement. The direction of travel favours continued accommodation of NFT innovation within adapted existing frameworks rather than the creation of NFT-specific regulation.

For market participants, the practical implication is that Swiss legal analysis of NFTs requires careful attention to economic substance. The same technical artefact — a non-fungible token on a blockchain — receives dramatically different legal treatment depending on what it represents, how it is marketed, and what expectations it creates. Legal advice specific to particular NFT structures remains essential, but the Swiss framework provides a coherent and increasingly well-charted territory within which to operate.

Donovan Vanderbilt is a contributing editor at ZUG WEB3, the decentralised protocol intelligence publication of The Vanderbilt Portfolio AG, Zurich. He covers digital asset regulation, Swiss crypto law, and the intersection of technology and legal frameworks.