Facts
A. AG (the appellant) is a joint-stock company headquartered in U. Its sole shareholder is B. C. GmbH is a limited liability company headquartered in V. Its shareholders are B. (60% of the share capital) and D. GmbH (40% of the share capital). The shares of D. GmbH are in turn held 91% by B; 9% is held by D. GmbH itself.
B. filed an application with the Commercial Register Office of the Canton of Zug to register the merger of A. AG with C. GmbH under the simplified procedure. The Commercial Register Office refused the registration, as the requirements for a simplified merger under Art. 23 para. 1 lit. b FusG were not met. The appeal of A. AG was dismissed by the Administrative Court of the Canton of Zug and ultimately by the Federal Supreme Court.
Considerations
The Federal Supreme Court decided that the simplified merger procedure pursuant to Art. 23 para. 1 lit. b FusG is only applicable in cases of direct shareholding relationships. Since B. holds the shares in C. GmbH partially only indirectly through D. GmbH, the requirements for a simplified merger are not met.
The court reasoned that the legislator has consciously created a numerus clausus of permissible…