Facts
Swisscargo AG was integrated into the SAirGroup AG group and was a 100% subsidiary of SAirLogistics AG until the end of 2000. In 2000, Swisscargo reported a profit of CHF 43.67 million and had total equity of CHF 35.35 million. Of this, CHF 2.5 million was share capital, CHF 2.43 million was premium, CHF 1.25 million was general reserve, and CHF 29.17 million was retained earnings.
Swisscargo had granted loans to Finance BV (CHF 16.5 million) and to SAirGroup (CHF 7.2 million). The defendant, the auditor of Swisscargo, confirmed the legality and compliance with the articles of association of the Board of Directors' proposal to distribute a dividend of CHF 28.5 million.
Considerations
The Federal Supreme Court held that intra-group loans that are not granted at market conditions result in a blocking of free equity in the amount of the loan principal. This follows from the prohibition of repayment of capital contributions under Art. 680 para. 2 CO.
The premium is to be allocated to the general reserve under Art. 671 para. 2 no. 1 CO…