Standard of proof for the prior exercise of the right to information CO inspection in special audit requests

Facts

Parties: Appellant (A. AG) and Respondents (B. and C.).

Facts: The appellant requested a special audit pursuant to Art. 697a para. 1 CO. The lower court required only a demonstration of the prior exercise of the right to information CO inspection, while the appellant demanded strict proof. The appellant complained that the lower court had applied the wrong standard of proof.

Relevant legal provisions: Art. 697a para. 1 CO, Art. 697 CO, Art. 702 para. 2 no. 3 CO, Art. 250 lit. c no. 8 CPC, Art. 248 ff. CPC.

Considerations

A special audit pursuant to Art. 697a para. 1 CO requires that the shareholder has previously exercised the right to information CO inspection pursuant to Art. 697 CO. This serves the subsidiarity of the special audit and gives the board of directors the opportunity to satisfy the shareholders' information needs before initiating a special audit procedure.

The lower court required only a demonstration of the prior exercise of the right to information CO inspection, while the appellant demanded strict proof. The lower court relied on a commentary that called for a less stringent examination of the thematic identity of the special audit request to the prior information request. However, this statement does not refer to the question of whether the right to information was exercised at all.

The law does not provide for a reduction of the standard of proof to mere demonstration. Rather, the applicant must prove the prior exercise of the right to information…