Facts
D. Holding AG is a public limited company with its registered office in the Canton of Fribourg. The shareholders A. GmbH, B. and C. applied for a special audit pursuant to Art. 697a et seq. CO at the general meeting on November 20, 2004. The request was rejected. Thereupon, the shareholders applied to the President of the Civil Court of the Seebezirk for the ordering of a special audit. However, the court dismissed the application, as the plaintiffs no longer represented the required 10% of the share capital at the time of the decision on the ordering of the special audit. The plaintiffs appealed against this judgment to the Federal Supreme Court.Considerations
The Federal Supreme Court confirms the interpretation of the lower court on Art. 697b para. 1 CO. Accordingly, the legally required quorum of 10% of the share capital must not only be fulfilled at the time of filing the request, but also at the time of the judicial decision on the ordering of the special audit. The quorum is intended to ensure that a representative minority of…