Facts
The Laxey Group, consisting of various companies, acquired a stake in Implenia AG in 2007 through Contracts for Difference (CFD). The CFDs were traded with various banks and the underlying shares of Implenia AG were deposited as collateral with these banks. The Laxey Group only reported its stake in Implenia AG after exceeding the statutory reporting thresholds of 10 % and 20 %.
The Swiss Federal Banking Commission (SFBC) initiated proceedings to examine whether the Laxey Group had violated its reporting obligations under Art. 20 SESTA. The Laxey Group requested that it be established that it had not violated any reporting obligations. The Federal Administrative Court dismissed the request and found that the Laxey Group had violated its reporting obligations.
The Laxey Group appealed to the Federal Supreme Court and requested that the judgment of the Federal Administrative Court be overturned and that it be established that it had not violated any reporting obligations. Implenia AG requested that the appeal be dismissed.
Considerations
1. Introduction
The Federal Supreme Court had to decide whether the Laxey Group had violated its reporting obligations under Art. 20 SESTA by acquiring a stake in Implenia AG through CFDs without reporting the statutory reporting thresholds.
2. Legal Basis
Art. 20 SESTA regulates the reporting obligations for the acquisition of stakes in listed companies. The provision aims to create transparency and ensure an early warning system for takeovers.
3. Interpretation of Indirect Acquisition
The Federal Supreme Court interpreted the indefinite legal term of indirect acquisition in Art. 20 para. 1 SESTA. It concluded that indirect acquisition includes all business activities that objectively enable the establishment of a stake relevant to the reporting obligation or that can convey voting rights over the securities in…