Facts

Parties:

  • Appellant: [A.]
  • Respondent: Swiss Financial Market Supervisory Authority FINMA

Facts:

  • [B. AG] , based in [C.] , was registered in the commercial register of the Canton of Zurich from 2015 to 2019 and, among other things, aimed to publish financial information through recognized information service providers.
  • On January 29, 2016, [A.] entered into an "Employment Contract as SRO Responsible Person" and a "Consulting Contract" with the company, primarily being responsible for corporate valuation and due diligence.
  • With an ex parte order of November 2, 2017, FINMA appointed two investigators to the company and ordered the blocking of all bank accounts and deposits.
  • With a provisional order of December 21, 2017, FINMA confirmed the measures ordered ex parte.
  • With an order of August 29, 2018, FINMA found that [E.] , [F.] , [A.] , and the company, together with foreign shell companies, had collectively engaged in unauthorized commercial securities trading, thereby seriously violating supervisory regulations.
  • FINMA ordered [A.] under threat of penalty to cease any activity requiring authorization under financial market law as well as corresponding advertising and ordered the publication of the cease and desist order for a period of three years.
  • The appeal filed by [A.] against FINMA's order was partially upheld by the Federal Administrative Court with a judgment of July 7, 2020, and the cease and desist order was specified.
  • [A.] filed an appeal in public law matters with the Federal Supreme Court, requesting the annulment of the judgment of the Federal Administrative Court and the cancellation of the cease and desist order and its publication.

Considerations

The Federal Supreme Court examines its jurisdiction and the further conditions for entering into proceedings ex officio and with free cognition. The appeal is admissible as an appeal in public law matters and concerns a matter of public law in the field of financial market law. The appellant's request for a declaratory judgment is not admissible, as it can be decided within the framework of the performance claims whether the appellant has engaged in unauthorized commercial securities trading in a group without authorization in serious violation of supervisory regulations.

The appellant alleges a violation of the right to be heard under Art. 29 para. 2 Cst. The Federal Supreme Court examines this allegation first, as a violation of the right to be heard, regardless of the material justification of the legal remedy, leads to the admission of the appeal and the annulment of the contested judgment. The appellant claims that a statement of February 15, 2018 is missing from the case files. However, the Federal Supreme Court finds that the appellant was able to effectively assert his position with his statement of June 5, 2018 and the appeal against the order of August 29, 2018. There is no violation of the right to be heard.

The Federal Supreme Court then examines whether the appellant, in a responsible position as a key actor in a group,…