The proposal aims to create a new criminal provision, structured as a misdemeanor, in case of violation of the obligation to publish a true and complete offer prospectus or a true and complete pre-announcement. It is to be structured as a mirror image of the penal provision for untrue or incomplete information in the target company’s statement (Art. 153 FinfraG).
The FinfraG is currently undergoing an evaluation. Against this backdrop, it is not apparent why any individual provision should be brought forward and separately amended prior to the publication of the evaluation report of the Department of Finance. Should any need for action be evaluated, it is to be expected that the Federal Council will submit a bill for the ordinary revision of the FMIA for consultation. We therefore see neither urgency nor necessity to bring forward an individual provision of the revision.
Furthermore, the proposed penal provision would also make negligence punishable. As with the current Art. 153 FinfraG, this would be neither expedient nor justified. If the criminal provisions of the FinfraG were to be extended, this would have to be done within the framework of the ordinary revision. Criminal liability for Art. 153 FinfraG would also have to be limited to the intentional commission of an offense.
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