Facts
The Handwerker-Baugenossenschaft Basel und Umgebung (hereinafter "hbg") manages the "hbg-Immobilien-Fonds", subject to the Federal Act on Collective Investment Schemes (IFA) which entered into force on 1 February 1967. Prior to the entry into force of the IFA, the fund management had been granted advances of 3.3 million francs from the fund to acquire and construct real estate. After the entry into force of the law, it could no longer transfer these properties to the fund in compensation for the advances. It therefore had to repay these advances in cash within the adaptation period provided for in Art. 53(2) IFA. Furthermore, as many investors had exercised their right of termination provided for in the regulations, hbg sought a solution to avoid the liquidation of the fund. It thus managed to find a Swiss investor willing to buy back all the outstanding certificates at a price higher than the net asset value, which would allow it to repay the advances to the fund. hbg then published in the Swiss Official Gazette of Commerce of 30 June 1969 the termination of the remaining 475 certificates that it had not been able to buy back.Considerations
The Swiss Federal Banking Commission, as the supervisory authority for collective investment schemes, declared this termination null and void and prohibited hbg from making any reimbursements on this basis, under penalty of withdrawal of its authorization to operate as a fund management company.
The Federal Supreme Court considers that the IFA does not allow the fund management to individually terminate collective investment contracts. Although the law recognizes the right of the individual investor to revoke the collective investment contract he has concluded (Art. 21 IFA), it only mentions a right…