Facts
The share capital of B. AG is divided into registered shares, voting shares, and participation capital. At the ordinary general meeting for the 2017 financial year, shareholder [A.] requested an additional preferred dividend of CHF 0.15 per participation certificate. Since the Board of Directors did not submit his motion for deliberation and voting, and the general meeting passed the resolution on the appropriation of the 2017 net income in accordance with the Board's proposal, [A.] challenged the resolution in the Commercial Court of the Canton of Bern.
Considerations
The Federal Supreme Court dismisses the civil law appeal filed by the appellant, to the extent that it enters into it. It holds that preferred shareholders and participation certificate holders cannot directly sue the company for their statutory entitlement to a preferred dividend, but rather must challenge the resolution that disregards their preferential rights. Even after a successful challenge, under the applicable law, the preferred dividend cannot be directly awarded to them, but the general meeting must pass a new resolution in accordance with the articles of association. Only to the extent that the general meeting fails to do so in breach of duty, can the participation certificate holders have a direct claim.
The Federal Supreme Court justifies this by stating that a challenge to the corporate resolutions that disregard the privilege must be made in order to secure the rights arising from the privilege. Only with an obligation to challenge is it ensured that the unlawful disregard of privileges is remedied equally for all those affected. Furthermore, the aspects of…