Lack of competence of the FINMA Executive Board to issue the decree

Facts

- PostFinance AG is a systemically important bank, the failure of which would have significant consequences for the Swiss financial market and the economy. - Decrees on additional capital requirements for systemically important banks can have far-reaching economic consequences and significant impact on the financial market. - Pursuant to Art. 9 para. 1 lit. b of the Financial Market Supervision Act (FINMASA), "transactions of major importance" fall within the competence of the FINMA Board of Directors, not the Executive Board. - The FINMA Organizational Regulations specify that decrees with significant consequences for the financial market or of systemic importance fall within the competence of the Board of Directors. - The disputed decree on additional capital for the systemically important PostFinance would therefore have fallen within the competence of the FINMA Board of Directors. - The Executive Board was therefore not competent to issue the decree, which is why it is to be annulled and the matter remanded to FINMA for re-assessment.

Considerations

- The Federal Supreme Court first examines the plea of lack of competence, as its validity could lead to the annulment of the contested judgment on formal grounds. - Pursuant to Art. 29 para. 1 Cst., every person is entitled to have their case judged by a competent authority. A decree issued by an incompetent authority is generally contestable. - The FINMA Board of Directors is competent for "transactions of major importance" pursuant to Art.…