Facts
The appellant requested the judicial appointment of a special auditor for two public limited companies (the respondents), as he suspected irregularities. The lower court dismissed the request, as the appellant had not submitted a request for a special audit to the board of directors or in a general meeting of the respondents.
The appellant argued that he had demanded the convening of an extraordinary general meeting, but had received no response from the board of directors. He was therefore not obliged to judicially enforce the convening of the meeting before he could submit a request for a special audit at the general meeting.
Considerations
The Federal Supreme Court upheld the dismissal of the request. It stated that the law provides that even a shareholder who does not reach the quorum of 10% of the share capital can submit a request for a special audit, but this request must be submitted and voted on at the general meeting. The refusal of the board of directors to convene an extraordinary general meeting cannot be equated with a rejection of the request for a special audit.
The Federal Supreme Court emphasized that the procedure for ordering a special audit requires the…