Facts
On February 26, 1993, the company [S.], a public limited company headquartered in B., held an extraordinary general meeting in which some shareholders requested information about certain business transactions and applied for the appointment of a special auditor, which was however rejected. Subsequently, on May 26, 1993, 93 shareholders filed an application with the President of the Cantonal Court of Zug for the appointment of a special auditor. Such an application was also made by 90 shareholders at the ordinary general meeting on June 30, 1993, and was rejected. The President of the Cantonal Court consolidated the two proceedings and partially granted the requests on October 22, 1993, by appointing the fiduciary company C. AG as the special auditor.
The company [S.] appealed against this decision, which was dismissed by the Judicial Commission of the High Court of the Canton of Zug in a judgment dated January 21, 1994. The company [S.] filed an appeal against this judgment, which was dismissed by the Federal Supreme Court to the extent that it entered into the matter.
Considerations
The Federal Supreme Court states that the right to appoint a special auditor under Art. 697b CO is to be understood as an independent membership right of the shareholders and that the resulting court decision constitutes a final decision in a civil dispute, which can be appealed against.
Contrary to the defendant's view, a special audit is not excluded for reasons of intertemporal law with regard to facts that occurred before the entry into force of the new company law. The right to a special audit is subject to the principle of immediate applicability of the new law as a legally guaranteed information right of the shareholders.
For the appointment of a special auditor, the shareholders must credibly demonstrate that…