Missmanagement im Bankensektor und die FINMA-Gewährsprüfung

This article addresses the following questions: Can the fitness and propriety audit of bank managers deliver what it promises? How could the fitness and propriety audit be improved within the framework of the existing legal basis or, if necessary, by means of new or adapted regulations? The tension between FINMA’s supervisory procedure on the one hand and criminal proceedings on the other hand initially argues in principle against tightening FINMA’s enforcement measures or equipping FINMA with criminal sanctions. Consistent application of the procedural guarantees under Article 6(1) of the ECHR when FINMA is given the power to impose fines – which, in view of the Federal Council’s report on pecuniary administrative sanctions of 23 February 2022, is unlikely to be the case for fines against banks as licence holders, but may nevertheless be the case for fines against their bodies that do not have a FINMA licence – would in any case mean slowing down the enforcement process. This…