Facts

The Swiss Financial Market Supervisory Authority (FINMA) determined by order dated 30 August 2013 that Bank X. AG (later: X. Administration AG) had seriously violated supervisory provisions in connection with cross-border US customer business from 2008 onwards. This order remained uncontested. Against the CEO of the bank who held office between 2008 and November 2012, the appellant A., FINMA opened an administrative proceeding on 30 September 2013. By order dated 4 July 2014, FINMA prohibited A. from holding a management position with a supervised entity for a period of two years (professional ban, Art. 33 FINMASA). In addition, a requirement for consent to the release of information from the proceeding and a penalty for non-compliance were stipulated. The proceeding costs of CHF 30,000 were imposed on A.

A. filed an appeal against the order with the Federal Administrative Court, which, by partial judgment dated 29 June 2015, dismissed the appeal against the professional ban and the proceeding costs. Against this partial judgment, A. filed an appeal in public law matters with the Federal Supreme Court, seeking the revocation of the partial judgment and a declaration that no serious breach of supervisory provisions had occurred.

Considerations

The Federal Supreme Court first examined whether the lower court had correctly assumed a serious breach of supervisory provisions by the bank, without conclusively determining this question in the proceeding against the appellant. It clarified that an order against the bank does not automatically constitute a preliminary issue for a professional ban directed against the CEO, since there is no identity of parties and material legal force only applies inter partes. However, the lower court had not sufficiently examined the appellant’s objections that the bank had not committed serious breaches of duty. In particular, evidence requests, such as to question FINMA representatives, had been wrongly rejected. This violated the obligation to consider legally relevant submissions (Art. 29 para. 2 Cst., Art. 49 lit. a APA) and resulted in a formal denial of justice.

With regard to the requirements for justifying a professional ban in cases of omissions, the court emphasised that a serious breach of duty through omission only exists if there was a specific duty to act that was not fulfilled despite the recognisability of the risks. The lower court had violated the duty to state reasons under Art. 61 APA by not having detailed how the appellant was alleged to have violated specific supervisory duties. A general reference to omitted risk analyses was insufficient, particularly since the enforcement of foreign legal provisions (here: US tax law) is not a task of FINMA (Art. 6 FINMASA).

Regarding the issue of the right against self-incrimination (nemo tenetur), the Federal Supreme Court held that the professional ban under Art. 33 FINMASA does not constitute a criminal charge within the meaning of Art. 6 para. 1 ECHR. Although the provision also contains repressive elements,…