Facts
In 2010, company A. SA applied to FINMA for a license to operate as a securities dealer. FINMA rejected the application, as A. SA had already exceeded the transaction volume of CHF 5 billion set by FINMA Circular 2008/5 as the threshold for the licensing requirement. FINMA also found that A. SA did not meet the requirement of impeccable business conduct. Consequently, FINMA ordered the liquidation of A. SA. FINMA's decisions were upheld by the Federal Administrative Court and the Federal Supreme Court.Considerations
The Federal Supreme Court confirmed the validity of the CHF 5 billion threshold set by FINMA in Circular 2008/5 as a condition for the licensing requirement of securities dealers for own account. This threshold was considered to be in line with the legislator's intention, which was to subject to licensing those dealers whose transaction volume could jeopardize the proper functioning of the market, even though the law did not explicitly set a numerical threshold.
The Federal Supreme Court rejected the appellant company's argument that the FINMA Circular did not provide a sufficient legal basis to restrict economic freedom. The licensing requirement for securities dealers for own account is directly established by the Stock Exchange Act (Art. 10 para. 1 in conjunction with Art. 2 let. d SESTA). The FINMA Circular merely specifies, in accordance with the legislator's intention, the…