Facts
The Laxey Partners Ltd. and its associated partner or subsidiary companies (hereinafter: Laxey Group) acquired in 2007, through derivative transactions via third parties ("contracts for difference" [CFD]), securities of Implenia AG. The Laxey Group informed the Swiss Federal Banking Commission (SESTO-FBC) only on 11 April 2007 about the acquisition of 2,258,468 Implenia shares, which corresponded to 12.226% of the voting rights. On 18 April 2007, the Laxey Group announced that it had meanwhile acquired 22.89% of the voting rights.
The SESTO-FBC treated the Laxey Group as a group within the meaning of the Swiss Stock Exchange Act and obtained information from various authorities and companies. On 19 October 2007, the Laxey Group filed an application with the SESTO-FBC to determine that it had not violated the disclosure obligations when acquiring its stake in Implenia AG.
Implenia AG applied for party status in the proceedings before the SESTO-FBC on 6 November 2007, but was informed that no administrative proceedings were pending, only an investigation.
The Federal Administrative Court dismissed the appeal by the Laxey Group against the decision of the SESTO-FBC, insofar as it did not dismiss it due to lack of subject matter. The Laxey Group filed a complaint in public law matters with the Federal Court, which dismissed the complaints, insofar as it considered them.
Considerations
1. Introduction
The Federal Court had to decide whether the Laxey Group had violated the disclosure obligations under Art. 20 of the Federal Act of 24 March 1995 on Stock Exchanges and Securities Trading (SESTA) by acquiring securities of Implenia AG through CFD.
2. Party status
The Federal Court found that Implenia AG had party status, as it had a legitimate interest in determining whether the Laxey Group had violated the disclosure obligations.
3. Establishment of the facts
The Federal Court found that the lower court had not obviously…