Right to request the inclusion of an item on the agenda of the general meeting of a public limited company

Facts

[A. AG] is a public limited company headquartered in U. with a share capital of CHF 100,000. The respondent [B.] holds 50% of the shares of A. AG. [B.] repeatedly requested the Board of Directors of [A. AG] to convene an ordinary general meeting for the 2013 financial year, but this was rejected.

[B.] then filed a request with the Commercial Court of the Canton of Zurich to order [A. AG] to convene a general meeting with certain agenda items and proposed resolutions. The Commercial Court granted the request and instructed a notary to convene the general meeting.

[A. AG] appealed this decision to the Federal Supreme Court.

Considerations

The Federal Supreme Court dismissed the appeal of A. AG. It stated that contrary to the wording of Art. 699 para. 3 CO, the right to request the inclusion of an item on the agenda is not limited to shareholders holding shares with a nominal value of CHF 1 million, but also applies to those representing at least 10% of the share capital. Since the respondent [B.] holds 50% of the shares of [A. AG], he has this right to request the inclusion of items on the agenda.

The Federal Supreme Court emphasized that the judge in the context of a request under Art. 699 para. 4 CO only has to conduct a formal review. He must verify whether the requirements of Art. 699…