Starting a marketing, advertising or communication agency in Switzerland: legal form, place-of-recipient VAT, copyright assignment, unfair competition and freelancers

No licence, no protected title: a free profession that polices itself

No federal or cantonal authorisation applies to a communication, advertising or marketing agency. Geneva publishes the list of commercial activities that do require a permit from its trade police: itinerant trade, second-hand goods, public establishments, off-licence sales of alcohol and tobacco, taxis and private hire, vending machines, professional lenders and credit brokers, public auctions. Agencies appear nowhere on it, and no other canton has a regime of its own for the profession. Titles such as advertiser, media planner or communication consultant are not protected.

Advertising is instead supervised by the industry. The Swiss Commission for Fairness, created in 1966 by the trade association Kommunikation Schweiz, describes itself as a neutral and independent institution of the communication industry whose purpose is to guarantee self-regulation in advertising. Anyone may file a complaint about an advertisement they consider unfair; the Commission issues recommendations rather than state-enforceable rulings, based on its own Rules, which take account of Swiss legislation and of the ICC Code. An agency that ignores those rules risks no fine from the Commission, but a published recommendation, and a competitor’s complaint often lands there before it reaches a court.

This freedom has a hidden cost: nothing obliges a founder to learn the statutes that govern the work before starting. The sections below take them one at a time.

Sole proprietorship, GmbH or AG: what incorporation changes for a creative

Most agencies begin as a freelancer with too many clients to stay alone. Incorporating is not a tax formality: it changes who answers for a campaign, who owns the creative work and how partners are paid.

• Liability: a campaign held to be unfair, an image used without rights or a prospect list mailed without consent engage the company rather than the founder’s personal assets, subject to personal fault. In a sole proprietorship the two are the same.
• Partners and standing: a creative duo, a partnership with a production studio or an incoming investor are structured through shares, with a shareholders’ agreement covering the departures that are common in this industry. Corporate clients and public tenders expect a commercial register extract.
• Pay: a partner working in their own company becomes its employee, and the salary versus dividend balance follows the general rules set out in our guide to the incorporation of a company in Switzerland and our page on the Swiss public limited company.
• Sale: an agency whose contracts, rights and brand sit inside a company can be sold; a sole proprietorship simply closes.

The agency name deserves more attention than it usually gets. A trade mark is « a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises » (Art. 1 para. 1 Trade Mark Act), and « a trade mark right is established on entry in the Register » (Art. 5). Registering a company name in the commercial register does not stop a third party from using the same name for communication services: only a trade mark filing does. The same applies to the campaign and product names an agency invents for its clients, a point to settle by contract before launch.

VAT: the place-of-recipient rule, in both directions

One paragraph governs an agency’s VAT position: « The place of supply of a service is deemed, subject to paragraph 2, to be the place at which the recipient of the service has its registered office or a permanent establishment for which the service is provided, or in the absence of such a registered office or such a permanent establishment, the recipient’s domicile or place of normal abode. » (Art. 8 para. 1 VAT Act). The Federal Tax Administration expressly lists advertising services among those following that rule, and paragraph 2 contains no exception for advertising.

Three practical consequences follow. First, an agency working for foreign brands invoices without Swiss VAT, yet that turnover counts towards the threshold: exemption applies to anyone who « within one year generates on Swiss territory and abroad turnover from supplies of less than 100,000 francs » (Art. 10 para. 2 let. a VAT Act). Second, the same agency usually benefits from registering voluntarily, so it can recover input tax on rent, software and equipment, as we set out in our guide to VAT in Switzerland.

Third, acquisition tax applies to « services whose place of supply in terms of Article 8 paragraph 1 is located on Swiss territory, when they are supplied by businesses with their registered office abroad that are not entered in the register of taxable persons » (Art. 45 para. 1 let. a VAT Act). The fees of a designer in France, a copywriter in Spain, a partner agency in Berlin and the licences of foreign tools all fall into this category. A registered agency declares it in its return; an unregistered one becomes liable once it « acquires for more than 10,000 francs of such services in a calendar year » (Art. 45 para. 2 let. b). A foreign agency intending to serve Swiss clients over time will find what its own liability entails in our tax representative service.

Copyright: an agency owns only what has been assigned to it

Swiss copyright law rests on a principle many agencies discover in the middle of a dispute: « The author is the natural person who has created the work. » (Art. 6 Copyright Act). A company is never an author. The logo, the film, the brand guidelines and the campaign copy belong to whoever created them, employee or freelancer, until an act transfers them. Protection starts early: « Drafts, titles and parts of works, insofar as they are intellectual creations with an individual character, are also protected. » (Art. 2 para. 4). A concept pitched and not selected is already protected.

Assignment is possible but read narrowly: « Copyright is assignable or may be inherited. » However, « the assignment of a right subsisting in the copyright does not include the assignment of other partial rights, unless such was agreed. » (Art. 16 paras 1 and 2). Granting the right to use a visual on a website does not carry the right to print it, adapt it or broadcast it. Each use, each term, each territory is assigned separately, or globally by a clause that says so.

For employees, the statute provides one automatic transfer only: « Where a computer program has been created under an employment contract in the course of discharging professional duties and in fulfilling contractual obligations, the employer alone shall be entitled to exercise the exclusive rights of use. » (Art. 17). That article covers software and nothing else. For a visual, a text, a video or an identity created by an employee, the employment contract must deal with assignment; for a freelancer, a written contract must.

In practice an agency maintains three chains of assignment: from its freelancers to itself, from its employees to itself, and from itself to the client. A broken chain means a client has paid for a campaign it may not exploit, or an agency has sold what it does not own.

What a campaign may not do: unfair competition, prices, personal data

The Unfair Competition Act is the statute every agency should keep on the wall, because it targets whoever designs the campaign as much as the advertiser. A person acts unfairly if they make « incorrect or misleading statements about themselves, their business, their business name, their goods, works, services, prices, stock, sales methods or business relationships, or if by such statements they favour third parties over their competitors » (Art. 3 para. 1 let. b). The agency that writes the claim favours a third party: it is caught by the same provision. Comparison is lawful only where it is not incorrect, misleading, unnecessarily harmful or parasitic (let. e).

The rule digital agencies breach most often concerns bulk messaging. It is unfair to « send or arrange to be sent mass advertising without direct connection with any requested content by telecommunication and in doing so fail to obtain the prior consent of the customer, or to indicate the correct sender or a simple and free of charge option of refusal » (Art. 3 para. 1 let. o). The only exception covers existing customers who were told of their right to refuse, for the sender’s own similar goods or services. For an online shop, letter s adds duties of identification and order processing, which we cover in our guide to setting up in Switzerland and in our sector guides. And the sanction is not only civil: « Any person who wilfully competes unfairly in terms of Articles 3, 4, 5 or 6 shall on complaint be liable to a custodial sentence not exceeding three years or a monetary penalty. » (Art. 23 para. 1).

The price indication ordinance governs the figures in a campaign. Where prices, price ranges or price limits appear in advertising, the prices actually payable must be indicated, the essential criteria must appear in the advertising medium itself, and a reference price is lawful only as self-comparison, as a launch price or by comparison with what competitors genuinely charge (Art. 13, 14 and 16 of the ordinance, available in French, German and Italian only). Reductions expressed in figures apply to services by analogy (Art. 17 para. 3). A “50% off” without a real reference price exposes the advertiser, and the agency that designed it.

Data protection law limits targeting. « The controller shall inform the data subject in an appropriate manner when collecting personal data; this duty to provide information also applies if the data is not collected from the data subject. » (Art. 19 para. 1 FADP). High-risk profiling, defined as profiling that « poses a high risk to the data subject’s personality or fundamental rights » by linking data to assess essential aspects of their personality (Art. 5 let. g), requires express consent when carried out by a private person (Art. 6 para. 7 let. b). A breach of personality is unlawful unless justified by consent, an overriding private or public interest, or by law (Art. 31 para. 1). The FADP is not the European regulation: an agency working for EU advertisers keeps the two regimes apart rather than transposing one onto the other.

Freelancers, interns and employees: the social security risk

Agencies live on freelancers. The risk is not using them but treating someone as self-employed whom the old-age insurance considers an employee. The official guidance sets out the criteria: a self-employed person trades under a business name, bears the economic risk, organises the business freely and works for several clients. On that last point the guidance is explicit: working for several principals generally indicates self-employment, while working for a single principal generally indicates employment. And it adds the sentence that settles most cases: the economic circumstances are decisive, not the contractual arrangements.

A freelancer who spends the week in the agency’s offices, on its equipment, for its clients alone, under the creative director’s instructions, is an employee whatever the contract says. The determining salary then covers income « in cash or in kind derived in Switzerland or abroad from the exercise of an activity, including incidental income » (Art. 6 para. 1 of the old-age insurance regulation), and the compensation fund may claim employer contributions on the fees already paid. The contract of mandate, by which « the agent undertakes to conduct the business or perform the services entrusted to them » (Art. 394 para. 1 Code of Obligations), and the contract for work, by which « the contractor undertakes to produce a work in exchange for payment » (Art. 363), protect only where they match reality: several clients, genuine risk, an organisation of one’s own.

An intern who is paid is an employee, and young creatives hired for months of real work under that label expose the agency to the same claims for contributions.

Client contracts: mandate or contract for work, fees, rights

Agency contracts are sometimes mandates and sometimes contracts for work, and the difference matters: a mandate requires services performed with due care, a contract for work requires delivery of a conforming result. Strategic advice or social media management is a mandate; delivery of a website, a film or a visual identity leans towards a contract for work, with the warranty for defects that comes with it. In the absence of a clear qualification, the rules of mandate apply to work « not governed by the statutory provisions of other contracts » (Art. 394 para. 2), which means the client may terminate at any time.

Four clauses recur in every agency dispute and should be settled before the first invoice: assignment of copyright to the client, with scope, term, territory, right of modification and source files; the fate of concepts not selected; the treatment of disbursements and media buying advanced for the client; and confidentiality, which the Code of Obligations imposes on employees « even after the end of the employment relationship » (Art. 321a para. 4) but which must be stipulated with a freelancer or a client.

Agency accounting: work in progress, disbursements, media buying

Agency accounts have two distinctive features. The first is work in progress: a campaign invoiced on delivery represents weeks of salaries already paid, which the balance sheet must reflect. The second is other people’s money, since media space, printing and production costs advanced for a client pass through the agency without being its turnover, and must be documented separately from fees, with their own VAT treatment. An agency that mixes the two knows neither its margin nor its threshold.

The rest follows the rules of any Swiss service company: payroll and social charges, acquisition tax on foreign tools and services, expense claims, and the VAT position described above. An agency that develops its own software adds the questions we cover in our guide to starting a SaaS company in Switzerland, and a consultancy selling intellectual services abroad follows the same VAT logic as the one set out for an engineering firm in Switzerland.

Pitfalls for a new agency

The first is assuming that a profession without a licence is a profession without obligations: unfair competition law, price indication rules and data protection apply to every campaign, and Art. 23 of the Unfair Competition Act is a criminal provision.

The second is selling a client rights the agency does not hold, for want of written assignment from its freelancers and its employees outside software.

The third is invoicing foreign clients without VAT while forgetting that the turnover counts towards the 100,000 franc threshold, and that voluntary registration would have recovered input tax.

The fourth is overlooking acquisition tax on foreign freelancers and software licences.

The fifth is working with a single-client freelancer on the agency’s premises: the compensation fund looks at economic circumstances, not at the contract.

The sixth is failing to file the agency’s trade mark, or to settle by contract who files the campaign names created for clients.

FAQ: starting a marketing agency in Switzerland

Do you need a licence or a qualification to open a marketing agency in Switzerland?

No. No federal or cantonal statute subjects communication, advertising or marketing agencies to a licence, a register or a protected title. Advertising is supervised by the industry itself through the Swiss Commission for Fairness, and by the courts under the Unfair Competition Act.

Does a Swiss agency charge VAT to a client established abroad?

No. Advertising services are located where the recipient has its registered office (Art. 8 para. 1 VAT Act), so a supply to a foreign client is outside Swiss VAT. That turnover nevertheless counts towards the 100,000 franc threshold, and voluntary registration allows recovery of input tax.

Does an agency pay VAT on fees billed by a foreign freelancer?

Yes, through acquisition tax, where the freelancer is not entered in the Swiss register of taxable persons (Art. 45 para. 1 let. a VAT Act). A registered agency declares it in its return; an unregistered one becomes liable beyond 10,000 francs of such services in a calendar year.

Who owns an agency’s creative work?

The natural person who created it (Art. 6 Copyright Act), until rights are assigned in writing. The statute transfers rights automatically to the employer for computer programs only (Art. 17); for any other creation, by an employee or a freelancer, an assignment clause is needed, and a further one to pass the rights to the client.

Can an agency send email campaigns to prospects?

Not without prior consent. The Unfair Competition Act treats mass advertising sent by telecommunication without consent, without correct identification of the sender or without a simple and free option of refusal as unfair (Art. 3 para. 1 let. o), and wilful unfair competition is prosecuted on complaint (Art. 23). The exception covers existing customers, for similar goods or services.

When does a freelancer become an employee of the agency?

When the economic circumstances are those of employment: a single principal, no genuine economic risk, no organisation of their own. The official guidance states that the economic circumstances are decisive rather than the contractual arrangements. The agency then owes employer contributions on the fees paid.

Sources

• Federal Act on Value Added Tax (VAT Act, SR 641.20), Art. 8, 10, 25 and 45
• Federal Tax Administration, Acquisition tax (in French)
• Copyright Act (CopA, SR 231.1), Art. 2, 6, 9, 16 and 17
• Trade Mark Protection Act (SR 232.11), Art. 1 and 5
• Unfair Competition Act (SR 241), Art. 3 and 23
• Ordinance on the Indication of Prices (SR 942.211), Art. 13, 14, 16 and 17 (in French)
• Federal Act on Data Protection (FADP, SR 235.1), Art. 5, 6, 19 and 31
• Code of Obligations (SR 220), Art. 321a, 363 and 394
• AHV/IV, Memorandum 2.02, Contributions of self-employed persons, as at 1 January 2026
• Swiss Commission for Fairness (in French and German)
• Republic and Canton of Geneva, Commercial activities subject to authorisation (in French)