Facts
The company G. GmbH, whose share capital is 260'000 Swiss francs, has as its purpose, according to its articles of association, the construction, operation and sale of hotel real estate, as well as the trade in these goods and land, the realization of fiduciary transactions of all kinds, renovations and repairs of buildings, insurance brokerage, vehicle rental and fiduciary management of client funds.
After issuing bonds on the German market, the company was invited by the secretariat of the Federal Banking Commission to provide detailed information on its activity and to submit its latest annual accounts with an audit report. The Federal Banking Commission then ordered an extraordinary audit and designated the competent authority, while obliging the company to pay an advance of costs of 20'000 Swiss francs.
The company filed an appeal in administrative law against this decision, which the Federal Court rejected.
Considerations
The Federal Court considered that the Federal Banking Commission is authorized, under Article 23bis paragraph 2 of the Banking Act, to order an extraordinary audit in the context of the authorization procedure and to collect an advance of costs for this purpose, if there are objective indications that an activity subject to authorization may be exercised.
The Federal Court also considered that the Federal Banking Commission has the power to request information and documents from a company to determine whether it is subject to banking legislation, and that the refusal to provide this information may justify an extraordinary audit.
Furthermore, the Federal Court estimated that the…