Registration of Resolutions of the General Meeting of a Public Limited Company in the Commercial Register

Facts

On May 11 and 25, 1987, the Commercial Register Office of the Canton of Basel-Stadt received documents for two registrations subject to publication. The first concerned the [S. AG] and was supported by the minutes of a general meeting held on May 11, 1987, which established the quorum of the meeting as a universal meeting, the dismissal without opposition of the previous Board of Directors [H.], the election of B. as the new sole member of the Board of Directors, and a change of address while the company's registered office remained in Basel. The second registration concerned the [P. AG] and was supported by the minutes of a general meeting held on May 22, 1987, which established the corresponding changes for the [P. AG], as well as the election of [S.] to the Board of Directors and the resignation of the previous managing director.

By submission dated June 13, 1987, [H.] requested the deletion of the registrations made on the basis of the two registrations due to the invalidity of the dismissals and new elections. The Commercial Register Office treated the submission as an objection and referred [H.] to the civil court. [H.] appealed against this decision to the Department of Justice of the Canton of Basel-Stadt, which dismissed the appeal.

[H.] filed an administrative court appeal against this decision with the Federal Supreme Court, requesting that the decision be overturned and that the Commercial Register Office be instructed to delete the registrations made on the basis of the disputed registrations and to restore the registrations existing up to May 11 and 22, 1987, respectively.

Considerations

According to Art. 940 para. 1 CO, the registrar must examine whether the legal requirements for registration are met. This examination extends both to the formal requirements under register law, in respect of which the Commercial Register Office has comprehensive cognition, and, to a limited extent, to matters of substantive law.

The registrar must only ensure compliance with those mandatory legal provisions that are established in the public interest or for the protection of third parties, while…