Facts
The present case concerned the application of a creditor (Y. GmbH) for inspection of the 2009 annual accounts and the 2009 audit report of the public limited company X. AG. X. AG had filed a declaratory action against Y. GmbH after Y. GmbH had been granted provisional debt enforcement relief for a claim of over 1.2 million Swiss francs in a debt enforcement proceeding.
The Higher Court of the Canton of Zug had granted Y. GmbH's request for inspection, as it considered Y. GmbH's creditor status to be highly probable and its interest in the inspection to be worthy of protection within the meaning of Art. 697h para. 2 CO. X. AG then filed a complaint with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the complaint. It stated that the applicant who demands inspection from a company that does not access the capital market must, in principle, prove both its creditor status and a legitimate interest. However, it is sufficient if these requirements are highly probable, as otherwise the enforcement of rights could fail due to difficulties of proof.
In the present case, the Federal Supreme Court considered Y. GmbH's legitimate interest to be given, as the claim against X. AG of over 1.2 million Swiss francs could not be considered a trivial matter, and the lower…