Facts
The X. Holding AG, the largest individual shareholder (44.5%) of Y. AG, filed a request with the civil court of Basel for the appointment of a special auditor. This request was rejected by the court of first instance and by the court of appeal of the canton of Basel-Stadt. The X. Holding AG then appealed to the DFC.Considerations
The DFC allowed the appeal. It considered that a shareholder who is a member of the board of directors or represented on it cannot be denied the right to appoint a special auditor on the grounds that they must have previously exercised their right to information under Art. 715a CO.
Indeed, the DFC ruled that the requirement to exercise the right to information in advance only applies to the shareholder's right to information under Art. 697 CO, and not to the broader right of the board member under Art. 715a CO. This would allow all shareholders, including those represented on the board of directors, to request the appointment of a special auditor without having to exercise their right to information as directors in advance.
According to the DFC, linking the right to a special audit to the prior exercise of the board…