Facts

The appellant ([A.] , CEO of [B. AG] in liquidation) was managing director of the company between 2006 and 2015. The company had its registered office in SocRA and primarily provided marketing and distribution services for pharmacological products. The company was entered in the commercial register on 12 September 2005.

By order dated 26 June 2015, the Swiss Financial Market Supervisory Authority (FINASA) found that the appellant had conducted securities trading on a commercial basis without authorisation and thereby seriously violated supervisory provisions (Stock Exchange Act, SESTA). FINASA ordered:

  • Cease-and-desist order: The appellant was to cease all activities requiring authorisation under financial market law and the corresponding advertising (operative part item 2).
  • Publication order: Operative part items 2 and 3 of the order were to be published on the FINASA website for a period of four years after the order became final and binding (operative part item 5).
  • Reference to criminal consequences in the event of non-compliance (Art. 44 and 48 FINMASA).

The appellant lodged an appeal against this order with the Federal Administrative Court, which dismissed the appeal by judgment dated 22 May 2018. On 2 July 2018, the appellant filed an appeal against this judgment with the Federal Supreme Court in public law matters. The appellant sought the annulment of the Federal Administrative Court’s judgment and of the FINASA order and, in the alternative, a referral back to the lower court. FINASA requested that the appeal be dismissed with costs.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal. It found that the appellant had lodged the appeal in due time and form and that the appeal contained a sufficient reformatory request. Moreover, the appellant was particularly affected by the contested measures and had a legitimate interest in their review. The appeal was therefore admissible to the extent that the cease-and-desist order and the publication order were contested.

On the merits, the Federal Supreme Court examined whether the appellant had conducted an emission house activity requiring authorisation without the required FINASA authorisation. Under Art. 2 lit. d SESTA and Art. 3 para. 2 SESTO, securities dealers who on a commercial basis take over securities issued by third parties on a firm CO commission basis and offer them publicly on the primary market are deemed to be emission houses. Between 2005 and 2015, the appellant took over several million shares in [B. AG] , which had been newly issued in the context of capital increases. She subscribed to these shares by converting CO offsetting loan claims and subsequently placed them publicly on the primary market. In doing so, she bore the placement risk and generated private income from the sales. The Federal Supreme Court qualified this activity as a firm takeover within the meaning of Art. 3 para. 2 SESTO and thus as an emission house activity requiring authorisation.

The appellant argued that her activity should not be qualified as emission house activity because she had sold the shares as a major shareholder after holding them for a long period and the transactions should therefore be classified as secondary market activity. The Federal Supreme Court rejected this argument. The decisive factor was that the appellant had taken over the newly issued shares and placed them publicly on the primary market. The close personal and financial ties between the appellant and the company did not alter the legal independence of the company CO the fact…