Burden on the Investment Fund by Membership Fees to the Association of Swiss Investment Trust Management Companies

Facts

Agemit AG, Zurich, managed the Swiss Real Estate Investment Fund Interswiss. For the years 1960-1967, it paid a total of CHF 131,773.-- in membership fees to the Association of Swiss Investment Trust Management Companies. It charged these fees to the Interswiss Fund. The Swiss Federal Banking Commission (supervisory authority) then obliged Agemit AG to repay this amount to the fund within 30 days. Agemit AG filed an administrative court appeal against this order.

Considerations

The Federal Supreme Court held that while the supervisory authority must monitor compliance with statutory provisions and the fund regulations, it is not authorized to decide civil disputes between the fund management and the investors. Rather, the civil court is responsible for this. The contested decision of the Banking Commission, which obliged Agemit AG to repay the membership fees to the fund, therefore exceeds the scope of the supervisory authority's duties and must be annulled.

However, pursuant to Art. 43 para. 2 of the Federal Act on Investment Funds (AFG), the Banking Commission can oblige the fund management to provide security if the rights of the investors appear to be endangered. This would be the case if it can be assumed with sufficient probability that Agemit AG has wrongly charged the fund with the membership fees. The…