Facts
Baumgartner Papiers Holding SA is a listed company with a share capital of 13'000'000 fr. divided into 130'000 registered shares. The Edelman group, composed of several companies, holds 27.6% of the voting rights, while the Banque Cantonale Vaudoise and consorts hold 33.9% of the voting rights.
On 29 January 2001, the Edelman group requested the Takeover Board (ToB) to acknowledge that the Banque Cantonale Vaudoise and consorts formed an organized group and therefore had to make a mandatory public takeover bid to the shareholders of Baumgartner Papiers Holding SA.
The ToB recognized the Edelman group's status as a party to the proceedings, which the Banque Cantonale Vaudoise contested. The Federal Banking Commission confirmed this decision, but the Banque Cantonale Vaudoise filed an administrative appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court examined whether the Federal Banking Commission's decision was an interim decision that could be the subject of an administrative appeal. It considered that the contested decision was an interim decision within the meaning of Art. 101 let. a FJA, as it only governed a procedural issue and represented only a step towards the final decision on the merits.
The Federal Supreme Court also examined whether the interim decision was likely to cause irreparable harm to the appellant. It considered that the status of a party conferred extended procedural guarantees, such as access to the file, and that the contested decision could cause irreparable harm to the appellant if it were to be confirmed.
The Federal Supreme Court then examined the issue of the status of a party before the ToB. It considered that the Federal Administrative Procedure Act was not applicable to the procedure before the ToB, as Art. 55 para. 5…