Facts
The [X.] Insurance AG (policyholder) is reinsured with the [Y.] Reinsurance AG in liquidation. On 1 March 2010, it applied to the Swiss Financial Market Supervisory Authority (FINMA) for party status and related access to files as well as a right to be heard in the procedure for releasing the [Y.] Reinsurance AG from insurance supervision. FINMA did not take action on this request, whereupon the [X.] Insurance AG filed an appeal with the Federal Administrative Court. The latter dismissed the appeal with a judgment of 30 August 2010. The Federal Supreme Court upheld this decision with a judgment of 2 February 2011 (2C_762/2010), in which it denied the party status of the appellant in the entire procedure.
On 15 August 2011 and 19 September 2011 and again on 10 April 2012 and 12 May 2012, the [X.] Insurance AG requested FINMA to grant access to the files, in particular to the liquidation plan pursuant to Art. 60 IOA. FINMA rejected these requests with a ruling of 5 July 2012, arguing that the party status of the appellant had already been finally decided and that there was no right of access to files. The [X.] Insurance AG filed an appeal against this with the Federal Administrative Court, which dismissed the appeal with a judgment of 11 March 2013 (B-4598/2012). Finally, on 3 September 2012, the [X.] Insurance AG filed an appeal in public law matters with the Federal Supreme Court, seeking to have the judgment of the Federal Administrative Court set aside and FINMA ordered to grant the appellant access to the liquidation plan.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. Since the challenged ruling by FINMA constitutes a final decision outside of a concrete procedure, the appeal in public law matters pursuant to Art. 82 lit. a, Art. 86 para. 1 lit. a and Art. 90 FSCA is admissible. The requirements for taking the case were met, so the Federal Supreme Court took the appeal.
In the merits review, the question was whether FINMA was justified in not taking action on the appellant’s request for access to files. The lower court had justified this by stating that the question of party status and the associated right of access to files had already been finally decided with the judgment 2C_762/2010 of 2 February 2011. The Federal Supreme Court confirmed this view and stated that the appellant does not have party status in the procedure for approving the liquidation plan. This applies regardless of whether the appellant challenges a specific ruling CO not. The decisive factor is that the approval of the liquidation plan only has indirect effects on the legal CO factual position of the appellant. A policyholder is not directly affected by supervisory measures such as the liquidation plan, since such measures primarily serve to protect policyholders as a whole and do not secure individual claims.
The appellant argued that the factual situation had changed since the judgment 2C_762/2010, in particular due to the capital reduction of the [Y.] Reinsurance AG and its position as the sole remaining policyholder. The Federal Supreme Court rejected these arguments. While the capital reduction may be relevant for creditors, such creditors can…