Facts
On June 28, 2010, the Swiss Financial Market Supervisory Authority FINMA opened the supervisory bankruptcy proceedings over Steinhalden AG in Liquidation. Steinhalden AG had previously been ordered into supervisory liquidation by the Swiss Federal Banking Commission (EBK) due to unauthorized securities trading, which was confirmed by the Federal Supreme Court on September 22, 2009.
The shareholders of Steinhalden AG, [X.] and his wife [A.], applied to FINMA to carry out the liquidation through an absorption of the company by Biological AG. FINMA did not rule this out, but set conditions such as the settlement of outstanding claims. Since the implementation of the absorption was delayed, FINMA ultimately opened the bankruptcy proceedings over Steinhalden AG.
Steinhalden AG in Liquidation had assets of around CHF 14.42 million and liabilities of CHF 19.994 million, resulting in an over-indebtedness of CHF 5.574 million. FINMA saw no indication that the value of the property held by Steinhalden AG had been underestimated or that the tax claims were too high.
Considerations
The Federal Supreme Court initially held that Steinhalden AG in Liquidation, despite the legally binding liquidation decision, is entitled to appeal against the subsequent opening of bankruptcy proceedings by FINMA. This results from the guarantee of access to the courts, as otherwise there would be a lack of legal protection.
On the merits, the Federal Supreme Court partially dismissed the appeal. An absorption merger of Steinhalden AG by a company controlled by the previous…