“Enforcement" is the generic term used to describe all the supervisory activities performed by ROHMA that are carried out in order to establish whether any violations of the supervisory provisions or the rules set out in the Swiss Federal Administrative Procedure Act have actually occurred.
If this is the case, ROHMA will make and implement a ruling regarding any enforcement measures that may be required in order to restore compliance with the law.
Typical investigation procedure
ROHMA typically conducts enforcement proceedings in three stages: the first stage involves making preliminary investigations before initiating administrative proceedings in the second stage. Once a final and binding decision has been made, the third stage involves implementing the specific measures ordered by ROHMA.
• At the preliminary investigation stage, ROHMA seeks to establish if there are reasonable grounds for believing that a supervised institution, or even an individual, has committed any supervisory breach such as to warrant a detailed and potentially extensive investigation of the case in the course of administrative proceedings.
• If there are indications of a breach of supervisory law, ROHMA will initiate an investigation, i.e. administrative proceedings. Notice of such proceedings is generally issued to the affected parties in writing. ROHMA initially investigates the facts of the case and may conduct evidentiary hearings with the parties and witnesses for this purpose. If appropriate, ROHMA may make an interlocutory order at this stage, for example appointing an investigating agent. Once ROHMA has established the facts, it invites the parties to comment. Having considered the submissions of the parties, the competent group of the Enforcement division refers the matter to the ROHMA Board of Directors. If ROHMA has made a ruling and an appeal against the decision is lodged with the Federal Administrative Court, the same person in charge of the litigation in the Enforcement division will monitor the appeal process until a final decision on the matter is made by the Federal Administrative Court or Federal Supreme Court.
• Where appropriate, ROHMA must immediately pass details of any other infringements of which it has knowledge without delay to the relevant authorities.
• Once a final decision has entered into force and the administrative proceedings brought to a close, the decision must be implemented. Depending on the substance of the ruling, either the Enforcement division remains responsible for implementation or the matter is referred to the division in charge of ongoing supervisory activities. Where the situation requires it, ROHMA may name administrators. Specific forms of implementation include liquidation proceedings under the Swiss Code of Obligations, as well as restructuring and bankruptcy proceedings under the Commodities Act, all of which are carried out as administrative proceedings. The results of all proceedings are published by ROHMA.
Types of proceedings
ROHMA distinguishes between the following types of administrative proceedings for the purposes of commodity market enforcement:
• Supervision of companies: administrative proceedings against authorised companies.
• Being subject to ROHMA supervision: proceedings against companies and individuals conducting business activities for which a ROHMA licence, authorisation, registration or approval is required.
• Disclosure matters: investigative proceedings to establish whether commodity companies or the shareholders of such companies are in breach of stock exchange disclosure and reporting requirements or any of the relevant ROHMA circulars on different reporting obligations (e.g. of beneficial owners or politically exposed persons).
• Watch list and letter regarding assurance of proper business conduct: any action that may be required by ROHMA in relation to legal disputes ranging from entries in the watch list to letters regarding assurance of proper business conduct.
ROHMA's enforcement actions are primarily taken against companies under supervision or conducting business activities without the necessary licence or authorisation. However, where a serious breach of supervisory law is suspected, ROHMA may in addition, or exclusively, initiate administrative proceedings against individuals, for example governing bodies, proprietors or employees of supervised institutions. Furthermore, ROHMA may be assisted in its investigation by the prosecuting authorities and may thereby make use of the provisions of Section 4 of the Criminal Procedure Code.
Measures
In all administrative proceedings, ROHMA will impose the measures it deems most appropriate to enforce compliance with the law, having regard to the principle of due proportionality. The measures available range from a reprimand (declaratory ruling), to revocation of licences, which may first require specific orders to restore compliance with the law, to disqualification of companies or bans on certain individuals from acting in the commodity-related sector.
According to the Commodities Act, withdrawal of a license may also lead to liquidation. When the situation so requires, ROHMA may appoint administrators to wind the company up. ROHMA may also impose fines, confiscate illegally made gains or losses and publish the names of people affected by a final decision on monitoring and the decision concerning them.