Facts
A. AG, headquartered in Zurich, was registered in the Commercial Register in 1996 under the name B. AG and later renamed C. AG. In 2008, it was renamed again to A. AG. By resolution of the General Meeting on July 19, 2012, the company was dissolved and placed into liquidation. PricewaterhouseCoopers AG in Zurich (PwC) was appointed as the liquidator.
On September 5, 2012, A. AG in Liquidation informed the Swiss Financial Market Supervisory Authority (FINMA) that it could no longer meet the capital adequacy requirements. FINMA subsequently set a deadline until 3:00 pm on September 13, 2012, for the bank to restore the proper condition. As this was not achieved, FINMA opened the bankruptcy proceedings against A. AG in Liquidation on October 8, 2012, and revoked its license as a bank and securities dealer.
Considerations
The Federal Supreme Court stated that FINMA has the option to order protective measures under Article 25 of the Banking Act (BankG) in the event of a violation of the capital adequacy requirements, which includes the opening of bankruptcy proceedings. However, the prerequisite for this is the existence of a risk of insolvency.
In the present case, it was undisputed that the capital adequacy and minimum capital requirements were not met. However, the appellant did not…