Judgment of the appellant due to unauthorized activity as a securities dealer

Facts

The appellant [X.] was the President, from June 2010 the Delegate of the Board of Directors, and the "CEO" of [A. AG] . Since the amendment of the Articles of Association on 22 December 2008, the purpose of [A. AG] was the purchase and sale of participations in companies, in particular Swiss companies, as well as the preparation of financial analyses, general financial consulting and the provision of additional financial services. In the course of the transition to the new business model, the participation of [A. AG] in the real estate company [B. AG] was increased from 40.0% to 78.1% of the share capital. [A. AG] fully focused its business activities on the sale of [B. AG] shares. The total amounts of purchase price payments from investors for [B. AG] shares amounted to CHF 379,250.-- (net revenue) in 2009, CHF 3,835,539.40 (gross revenue) in 2010, and CHF 5,864,107.50 (gross revenue) in the first half of 2011. The Federal Department of Finance (EFD) found [X.] guilty of unauthorized activity as a securities dealer (Art. 44 para. 1 FINMASA in conjunction with Art. 10 para. 1 SESTA) by penal order dated 20 November 2015. The Federal Criminal Court confirmed this judgment on 29 April 2016.

Considerations

According to Art. 44 para. 1 FINMASA, anyone who intentionally carries out an activity that requires authorization, recognition, admission or registration under the financial market laws without such authorization, recognition, admission or registration shall be punished with imprisonment of up to three years or a fine. Pursuant to Art. 2 lit. d SESTA, natural and legal persons as well as partnerships who, for commercial purposes, buy and sell securities on the secondary market for their own account for short-term resale or on behalf of third parties, publicly offer securities on the primary market or create and publicly offer derivatives themselves are considered securities dealers. [A. AG] generated the majority of its revenue from the sale of [B. AG] shares during the relevant period and was therefore primarily active in the financial sector. It acted commercially and publicly. [A. AG] took over shares of…