Facts
The case concerns a lawsuit filed by the acquirer of 184 registered shares with transfer restrictions (vinkulierte Namenaktien) of Usego-Trimerco Holding AG (UTH) against the registered book shareholder, with the aim of prohibiting the latter from exercising voting rights in certain cases.
The plaintiff had acquired the shares through Nordfinanz-Bank Zürich, which acted as a self-contracting party. The Board of Directors of UTH had rejected the registration of the plaintiff as a shareholder.
The Federal Supreme Court dismissed the lawsuit. It reached the following conclusions:
Considerations
1. Corporate Law Reasoning From a corporate law perspective, the exclusion of the book shareholder from voting rights cannot be justified. According to the so-called "Spaltungstheorie" (split theory), in the absence of the company's consent to the transfer of registered shares with transfer restrictions, the membership rights, including the voting rights, remain with the transferor. The Federal Supreme Court rejected various theories developed in the literature that are intended to avoid this result.
2. Contract Law Reasoning There was no express contractual obligation of the defendant to waive the exercise of his voting rights. Such an obligation cannot be derived as an…