Repeal of the Advertising Ban and Publication in the Case of X.________ AG and Y.________

Facts

The [X. AG] and [Y.] were convicted by the Swiss Financial Market Supervisory Authority (FINMASA) for violating the BankA. The FINMASA found that the [X. AG] and the [A. AG] had accepted public deposits on a commercial basis and opened supervisory bankruptcy proceedings against them. [Y.] was subject to an advertising ban and the publication of this ban was ordered on the FINMASA's website.

The [X. AG] and [Y.] lodged a complaint and requested the repeal of the judgment of the Federal Administrative Court and the ruling of the FINMASA. They argued that they had not accepted public deposits, but had acted as trustees.

The Federal Court admitted the complaint and repealed the judgment of the Federal Administrative Court, insofar as it concerned the publication of the advertising ban. The case was referred back to the FINMASA to make a new decision.

Considerations

The Federal Court justified its decision by stating that the FINMASA and the Federal Administrative Court had not conducted an in-depth balancing of interests to verify the proportionality of the publication of the advertising ban. The court found that the publication of the advertising ban constituted a serious infringement of [Y.] 's general and economic personality rights and that the FINMASA and the Federal Administrative Court had not sufficiently demonstrated how a serious violation of supervisory regulations existed in the specific case.

The Federal Court also pointed out…