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A-03-11 CAO

Capital Adequacy Ordinance

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Fraudulent obtaining of "COVID-19" credits

The Federal Supreme Court confirms the classification as a fraud

Since March 2020, more than 100,000 Swiss companies have made use of the bonded loans set up by the Confederation to make up for a lack of liquidity following the COVID-19 pandemic. The Swiss authorities' desire to respond quickly to an exceptional situation and to ensure rapid access to funds led them to introduce a facilitated procedure, based essentially on a self-declaration by the credit applicant, which has unfortunately seen its share of abuses. In a recent ruling to be[...]

Bank stability

Federal Council report impressive but still too vague

Since the adoption of the too-big-to-fail regime in 2011, article 52 BL stipulates that the Federal Council must examine the provisions of articles 7 to 14b BL three years after the system comes into force and then every two years, compare them with the corresponding international standards abroad and report back to the Federal Assembly, if necessary with proposals for amendments to the law or ordinances. In its report on systemically important banks of 4 June 2021 (FF 2021 1487),[...]

Additional equity capital

FINMA practice and the judge’s power of cognition

In a ruling dated March 30, 2023 (B-4004_2021), the Federal Administrative Court (FAT) found that the additional capital requirements imposed by FINMA on PostFinance SA (PostFinance) on the basis of art. 131b cum 45 let. b of the Capital Adequacy Ordinance (CAO) and its practice set out in FINMA Circular 2019/2 "Interest rate risks - banks" (the Circular) to address the risk of rising interest rates were in accordance with the law. This ruling follows a previous decision by the[...]

Money laundering

Fraudulent obtaining of COVID credit

Can obtaining a COVID credit fraudulently lead to criminal consequences, and if so, what are they? In ruling 6B_295/2022, the Swiss Federal Supreme Court upheld the conviction of a greedy entrepreneur for money laundering. The ruling also provides an opportunity to discuss other criminal offences that may be relevant. A quick (re)contextualization before turning to the case at hand: in March 2020, the COVID-19 pandemic strikes with full force. To help companies affected by this crisis, on March 25, 2020,[...]

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