Non-entry into the appeal due to the company's lack of standing and forwarding of a request for restoration of a time limit due to non-payment of the advance on costs

Facts

The Swiss Financial Market Supervisory Authority FINMA, by decision of 15 March 2019, found that [Y. AG] had seriously violated supervisory law provisions. At the same time, it discontinued the enforcement proceedings against, among others, [A.] , but imposed on him, alongside [Y. AG] , pro rata investigation and proceedings costs.

[A.] and [X. GmbH] (both from Germany) challenged this decision before the Federal Administrative Court on 7 May 2019. By interlocutory decision of 16 May 2019, both were ordered to pay an advance on costs of CHF 3,000.-- by 17 June 2019, failing which the appeal would not be entered upon. [X. GmbH] paid the advance in time; [A.] made no payment.

By partial judgment of 25 June 2019, the Federal Administrative Court did not enter upon [A.] 's appeal due to non-payment of the advance on costs (Art. 63 para. 4 APA) and decided that the proceedings were to continue only with respect to [X. GmbH] .

By appeal in public law matters of 26 July 2019, [A.] and [X. GmbH] asked the Federal Supreme Court to set aside the partial judgment. The time limit for payment of the advance on costs was to be restored in favour of [A.] ; alternatively, he was to be granted a further period of 10 days.

Considerations

The appellant ([X. GmbH] ) is not particularly affected by the non-entry decision, which concerns [A.] alone, and does not demonstrate any interest worthy of protection. It therefore lacks standing (Art. 89 para. 1 lit. b and c FSCA). Insofar as the appeal is lodged by it, it is manifestly inadmissible.

The appeal in public law matters is in principle admissible against non-entry decisions of the Federal Administrative Court (Art. 86 para. 1 lit. a FSCA). However, the underlying principle of Art. 86 FSCA is that the Federal Supreme Court should not be seized where the complaints can be fully and effectively raised beforehand before a lower instance.

In the present case, [A.] essentially asserts a ground for restoration of a time limit: he claims to have misunderstood the interlocutory decision of 16 May 2019 without fault and therefore missed the time limit. Such grounds of excuse must be raised before the authority itself by way of a request for restoration of a time limit under Art. 24 para. 1 APA (in conjunction with Art. 37 FACA). Where no complaints going beyond the missed time limit are raised against the non-entry, this remedy must be pursued first before approaching the Federal Supreme Court.

It is therefore for the Federal Administrative Court to examine, applying Art. 24 APA, whether suitable…