Facts

PostFinance AG (appellant) is a privately organised subsidiary of Schweizerische Post AG. Since 6 December 2012 it has held a licence from the Swiss Financial Market Supervisory Authority (FINMA) as a bank and securities dealer. By decision of the Swiss National Bank (SNB) of 29 June 2015, it was classified as systemically relevant. For some time, FINMA and the appellant have disagreed about the methodologically correct measurement of interest rate risks and their coverage with own funds.

By decision of 6 July 2021, FINMA required the appellant to hold additional own funds of CET1 quality as soon as the equity capital sensitivity, based on the cash flows under Circular 2019/2 'Interest Rate Risks - Banks' under the parallel interest rate shock scenarios, amounts to at least 15% of eligible core capital. For the calculation, the interest rate commitment period for sight and savings deposits was set at two years. Staggered surcharges ranged from CHF 149 million to CHF 1,269 million, based on eligible going-concern core capital of CHF 5,972 million. In addition, the upper limit of equity capital sensitivity was raised to 37.5%, the decision was declared immediately enforceable, and a fee of CHF 50,000.- was imposed.

In justification, FINMA stated that the appellant was exposed to heightened interest rate risks and constituted an outlier institution. Minimum own funds and own funds buffers did not provide sufficient security in relation to the risks assumed.

On 7 September 2021, the appellant lodged an appeal with the Federal Administrative Court, arguing that the heightened interest rate risks arose solely from the supervisory-law prescribed two-year interest rate commitment period, for which there was no legal basis; this period contradicted international standards and was arbitrary. The Federal Administrative Court dismissed the appeal by judgment of 30 March 2023. By public law appeal of 16 May 2023, the appellant requested the annulment of the judgment of the lower court.

Considerations

The subject of the proceedings is the order of additional own funds to cover interest rate risks. Legally, the order is based on Art. 4 BankA, the Capital Adequacy Ordinance (CAO), and in particular Art. 45 lit. b CAO, which authorises FINMA under special circumstances in individual cases to require additional own funds where minimum own funds and own funds buffers do not provide sufficient security in relation to the risks assumed. The appellant is to be qualified as a systemically relevant bank (Art. 7 et seq. BankA); moreover, lending is in principle prohibited for it (Art. 3 para. 3 PSOA), although it provides payment transaction services within the scope of the basic service (Art. 32 para. 1 PostSA).

The appellant complained of an impermissible restriction of the lower court's cognition, a violation of Art. 37 FACA in conjunction with Art. 49 APA, and a formal denial of justice (Art. 29 and 29a Cst.). The Federal Supreme Court rejected these complaints: the facts of Art. 45 lit. a-e CAO simultaneously constitute the decisive criteria for special circumstances in individual cases. The 'risks assumed' are both the triggering facts and the assessment standard for the extent of the additional own funds, which is why it can remain open whether FINMA has discretion as to the existence of the facts.

The appellant argued that FINMA must rely on its own empirically collected interest rate commitment. This was rejected, as the interest rate commitment of non-maturing customer deposits cannot be determined empirically but must be estimated. If FINMA relied solely on the information of the supervised institution, it would not adequately perform its independent supervisory function (Art. 21 para. 1 FINMASA). FINMA may therefore use independently determined calculation methods and its own interest rate commitment as a supervisory working instrument…