Facts
The Swiss Financial Market Supervisory Authority (FINMA) initiated supervisory proceedings against [B. AG] due to the suspicion of commercial acceptance of public deposits without a license. It prohibited the company from accepting any public deposits, froze its accounts, and appointed an investigating agent. FINMA determined that [B. AG] had commercially accepted public deposits without a license, thereby seriously violating supervisory regulations. It therefore ordered the dissolution and liquidation (bankruptcy) of the company. [A.] and [C.] as natural persons were also instructed not to engage in any activity requiring a license and not to commercially accept any public deposits without a license.
Considerations
The Federal Supreme Court upheld FINMA's decision. It concluded that FINMA was entitled to take the necessary measures to eliminate irregularities and restore proper order. The company had commercially accepted public deposits without a license, which violated the Banking Act. The exemption provisions for debentures and transfers of ownership were not met, as the investors were not comprehensively informed as per Art. 1156 of the Swiss Code of Obligations. The company's over-indebtedness was also sufficiently justified, so that the liquidation could be carried out through bankruptcy proceedings.
The Federal Supreme Court further held that FINMA's appointment of an investigating agent was lawful, as…