Ist Art. 42a Abs. 4–6 FINMAG (Einschränkung des Kundenverfahrens im Rahmen der internationalen Finanzmarkt-Amtshilfe) verfassungskonform?
More or less unnoticed from the general Swiss population the Swiss legal provisions concerning international administrative assistance in stock market supervision underwent certain revisions that entered into effect on 1 January 2016. Particularly, in contrast to the old rules the Swiss financial markets supervisory authority FINMA now has the possibility, exceptionally, to transmit information to foreign stock market supervisory authorities without having to previously inform the bank customers concerned (Art. 42a(4) of the FINMASA). This contribution examines whether or not this new situation is in conformity with the Swiss constitution. As a result, it is shown that the relevant provision is to be qualified as unconstitutional in light of the general constitutional guarantee of access to the courts. Because of the limited constitutional jurisdiction of the Swiss Federal Tribunal in relation to federal laws this does, however, not lead to the invalidity of Art. 42a(4) of the…
