Facts
On August 30, 2013, the Swiss Financial Market Supervisory Authority (FINMA) issued an order against Bank A. AG regarding organizational and guarantee requirements in connection with cross-border US customer business. The order included, among other things, the directive that Bank A. AG may only disclose or make the content of the order accessible to third parties with the consent of FINMA.
Bank A. AG filed a complaint against this directive with the Federal Administrative Court, which upheld the complaint and revoked the directive. FINMA then filed an appeal in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court found that there is no sufficient legal basis for the unlimited consent requirement imposed by FINMA for the disclosure of the content of the order. Such a requirement would constitute a severe interference with the right to informational self-determination and freedom of expression, for which a clear and precise basis in the law itself is required according to the Federal Constitution.
However, the Federal Act on the Swiss Financial Market Supervisory Authority (FINMAG) does…