Dismissal of the appeal against the decision not to consider the appeal due to late payment of the advance payment of costs

Facts

[B.] Holding AG filed an appeal against the ruling of the Swiss Financial Market Supervisory Authority (FINMA) of 1 February 2013, which opened bankruptcy proceedings against [B.] Holding AG and imposed a ban on advertising on [C.] and [D.] . The appeal was dismissed by the Federal Administrative Court because [B.] Holding AG had not paid the advance payment of costs on time. [B.] Holding AG then filed an appeal with the Federal Supreme Court.

[B.] Holding AG had ordered the advance payment of costs of CHF 5,000.-- from [E. AG] on 8 May 2013, but the payment was not debited from the account of the Federal Administrative Court until 10 May 2013. [B.] Holding AG argued that the payment had been made on time, as it had been ordered on 8 May 2013.

However, the Federal Supreme Court ruled that the payment had not been made on time, as the relevant date was the date of debiting, not the date on which the debiting should have taken place. The court also dismissed [B.] Holding AG's application for reinstatement of the time limit, as it had not acted without fault when ordering the advance payment on the last day of the time limit.

Considerations

The Federal Supreme Court examined the correct application of federal law and based its judgment on the facts established by the lower court. It found that the appeal in public law matters was admissible and that the appellant was entitled to appeal.

The court ruled that the time limit for payment of an advance payment was observed if the amount had been handed over to the Swiss Post or debited from a postal or bank account in Switzerland on time. However, it was not sufficient to give the…