Facts
Fema AG, a Swiss public limited company, was founded in 1965 by Robert Wehrli as the sole shareholder. In the same year, Ernst Bösch joined the company as a new co-shareholder and member of the Board of Directors. In 1967, differences arose between the two shareholders, and Bösch's mandate as a member of the Board of Directors was not extended.
Bösch then filed a lawsuit with the District Court of Lucerne-City with the aim of having the resolutions passed at the general meetings of 28 January 1967 declared null and void or at least contestable. In particular, he objected to the casting vote of the chairperson in the event of a tie, which was anchored in the articles of association.
Considerations
The Federal Supreme Court confirmed the admissibility of the statutory casting vote of the chairperson in the general meeting. It argued that while the law on public limited companies is generally based on the principle of capital, it does allow for exceptions, such as the restriction of voting rights according to the number of shares or the creation of voting shares. The casting vote of the chairperson is such an admissible means to ensure the decision-making capacity of the general meeting and thus the continued existence of the company.
The Federal Supreme Court did not see the provision of the casting vote in the articles of association as a violation of the principle of equal treatment of shareholders. Differential treatment is permissible if it is necessary for the pursuit of the company's purpose in the…