Facts

Parties:

  • Appellants: Fina Vorsorge AG, IBPV-Investmentgesellschaft für die berufliche und private Vorsorge AG, Acento Swiss Investment Company Ltd., [A.] , [B.]
  • Respondent: Swiss Financial Market Supervisory Authority FINMA

Court: Swiss Federal Supreme Court, II. Public Law Division

Date of Judgment: January 12, 2012

Main Issue:

  • The FINMA conducted investigations against Infina GmbH and other companies in the environment of [C.A.] and [C.B.] due to potentially license-requiring activities.
  • The FINMA found that the involved companies as a group had accepted public deposits without a license and thus violated the Banking Act.
  • The FINMA opened supervisory insolvency proceedings against Infina GmbH and the Fina Freizügigkeitsstiftung and placed Fina Vorsorge AG into supervisory liquidation.
  • The FINMA determined that IBPV AG and Acento Ltd. were also to be considered part of the Infina Group and were to be liquidated under supervisory law.
  • The FINMA prohibited [A.] and [B.] under threat of penalty from accepting public deposits for commercial purposes in the future, either themselves or through third parties, or from advertising in any way for the acceptance of public deposits.

Appeal:

  • The Fina Vorsorge AG and IBPV AG, Acento Ltd., as well as [A.] and [B.] filed appeals against the judgments of the Federal Administrative Court.
  • They claimed never to have been part of the Infina Group and to have pursued activities separate from it outside the scope of financial market supervision.

Considerations

The Federal Court based its judgment on the facts as established by the lower court. It could only correct or supplement these if they were obviously incorrect or had been determined in violation of essential procedural rights. The appellants argued that an evaluation of the evidence presented would lead to the conclusion that the factual findings made by the lower court were not legally sufficient and that the evidence appeared meager. A "strict proof" of their involvement in the Infina Group had not been provided; there were "serious doubts" about the factual findings of the lower court.

The Federal Court stated that the lower court had a considerable margin of discretion in the area of evidence evaluation. It would only intervene if the assumptions were arbitrary, appeared obviously untenable, were in clear contradiction to the actual situation, were based on an obvious mistake, or contradicted the sense of justice in a shocking manner. Arbitrariness did not already exist, according to practice, when merely another evaluation of the evidence was also conceivable, as the appellants claimed. To the extent that they merely opposed their (deviating) view of the matter to the findings of the Federal Administrative Court without explaining how its findings and conclusions were obviously untenable or erroneous, their arguments did not need to be further considered.

The Federal Court further explained that a financially market-law activity requiring a license could also be carried out within the framework of a group. The licensing requirement and financial market supervision should not be circumvented by the fact that each individual company or the persons behind…