Facts
Parties: Swiss Financial Market Supervisory Authority (FINMA) against X.
Court: Federal Supreme Court, II. Public Law Division
Date: February 10, 2011
Main Issue: FINMA applied for the annulment of the decision of the Federal Administrative Court insofar as it concerned the distribution of collective investment schemes. X. also appealed the previous decision.
Background: The Swiss Federal Banking Commission (SFBC) conducted investigations against the "Baumann" group from February 2008 onwards due to illegal activities in the financial market. It was established that Ambros Baumann and various of his sole proprietorships had accepted public deposits on a commercial basis and thus violated the Banking Act. The SFBC opened bankruptcy proceedings under banking law over the estate of Ambros Baumann and his sole proprietorships. The investigation officer concluded that between 2000 and 2007, around 604 investors had invested at least CHF 72,602,000 in so-called "trust agreements" with the "Baumann" group, and the origin of a further CHF 32,622,000 had not yet been identified. The claims were opposed by assets of only around CHF 6,565,000. The decision became final.
Further Investigations: The SFBC found that X. had violated the Banking Act, the Collective Investment Schemes Act, and the Stock Exchange Act in this context and was prohibited from accepting public deposits on a commercial basis under any name, either directly or through third parties, or from distributing collective investment schemes or advertising for such schemes or for the acceptance of public deposits or another activity reserved for banks.
Considerations
The appointment of an investigation officer does not require that a specific violation of the law has already been established; it is sufficient that there are objective indications of such a violation. The supervisory authority must consider the possibility that the persons concerned may not be engaged in an activity subject to supervision and that the precautionary measures may unjustifiably seriously impair them. The supervisory authority must therefore react quickly to the first results of the investigations.
The appointment of an investigation officer is now regulated in Art. 36 FINMASA. The supervisory authority may instruct an independent and expert person to clarify a fact relevant to supervisory law with a supervised entity or to implement supervisory measures ordered by it. The supervised entities must grant the investigation officer access to their premises and provide all information and disclose documents necessary to fulfill the corresponding task.
The FINMA's interpretation, according to which any advertising that does not…