Facts

Parties:

  • Appellants 1-9: Various companies in liquidation, including [A.] Holding AG, [B. AG] , [C.] Holding SA, Panama, branch office Hergiswil, and others.
  • Appellant 10: [J.] , acting on behalf of appellants 1-9.
  • Respondent: Swiss Financial Market Supervisory Authority FINMASA.

Main case:

  • The FINMASA conducted an investigation against appellants 1-9 on suspicion of unauthorized licensed activity.
  • The FINMASA found that appellants 1-9 had accepted public deposits commercially without authorization, thereby violating the Banking Act.
  • The FINMASA ordered the bankruptcy of [B. AG] in liquidation and the liquidation of the other companies.
  • [J.] , [L.] , and [M.] were prohibited from advertising under threat of penalty.
  • The Federal Administrative Court dismissed the appeal of appellants 1-9 against the FINMASA decision.
  • Appellants 1-9 and [J.] filed an appeal with the Federal Supreme Court.

Legal issues:

  • Authority of [J.] to file an appeal on behalf of appellants 1-9.
  • Application of Swiss banking law to the activities of appellants 1-9.
  • Proportionality of the ordered liquidation and advertising ban.
  • Legal basis and proportionality of the publication of the advertising ban.

Considerations

1. Authority to file an appeal:

The Federal Supreme Court first examined whether [J.] was authorized to file an appeal on behalf of appellants 1-9. For appellants 1 and 2, who had their seat in Switzerland, [J.] was authorized to file an appeal due to his position as director CO managing director and member of the board of directors. For the remaining appellants 3-9, who had their seat abroad, [J.] was authorized to file an appeal due to his position CO representation under the Panamanian commercial register entry. For appellants 3, 4, 5, 6, and 9, [J.] was not registered in the commercial register, but he was considered a de facto organ of these appellants as he had been listed for these companies in Switzerland for the entry of formal Swiss branch offices.

2. Application of the Banking Act:

The Federal Supreme Court confirmed that the activities of appellants 1-9 fell under Swiss banking law. The appellants had accepted public deposits commercially and thereby violated the Banking Act. The FINMASA correctly established that appellants 1-9, as a group, had coordinated and targeted the licensing requirement of the commercial acceptance of public funds. The qualification of the business activities of appellants 1-9 as licensed activities was not objectionable.

3. Proportionality of the liquidation and advertising ban:

The Federal Supreme Court confirmed that the ordered liquidation of appellants 1 and 3-9 as well as the bankruptcy of appellant 2 was proportional. The FINMASA had refused to grant a retroactive authorization to…