Facts
The appellant, Dr. [A.] , filed a complaint with the Federal Administrative Court to determine the nullity of a decision by the Swiss Financial Market Supervisory Authority (FINMA) dated July 1, 2011. The decision was issued against [X.] Fonds Management AG and contained allegations against the appellant without him being heard beforehand. The appellant claimed that the decision was null and void because he had not been heard and FINMA had violated his party status.
The Federal Administrative Court did not consider the request for a declaration and dismissed the complaint of denial of justice. The appellant filed a complaint in public law matters with the Federal Court to achieve the annulment of the Federal Administrative Court's judgment and the declaration of the nullity of FINMA's decision.
Considerations
The Federal Court examined whether the lower court had rightly issued a decision not to consider the case. It found that the appellant, as a third-party interested person, may have had party status, but was not the addressee of the decision. FINMA had not served the decision on the appellant, but he had been informed of the allegations against him through a letter from FINMA dated December 21, 2011.
The Federal Court found that the failure to serve the decision does not lead to nullity if the person concerned has nonetheless been informed of the…