Publicité des participations et principe de légalité – Mythe ou réalité ?

Instances in which non-compliance with financial regu­lations can give rise to a criminal liability are on the rise. This creates a tension between the need for flex­i­bility in the implementation of financial laws and the requirement that behaviours that may give rise to a criminal conviction be clearly defined by law. The rules on disclosure of shareholdings in listed companies are an example in point. Recently, the Swiss Supreme Court found that a portion of FINMA’s implementing regu­lations lacks a statutory basis in this respect and is consequently unenforceable. This raises the question of the legality of other aspects of the current regulations. This article discusses the implications of the decision of the Supreme Court and of the proposed Federal Act on Market Infrastructure in this context.