Facts
The Hoch- und Tiefbau-Genossenschaft Bern (plaintiff) is a member of the Swiss Builders' Association (SBV, defendant). On February 24, 2003, the Timber Construction Group Switzerland, a subgroup of the SBV, informed the defendant that it wished to withdraw from the SBV as a group. 652 companies that were simultaneously members of the SBV and the Timber Construction Group Switzerland then applied for amendments to the articles of association to allow the members of the Timber Construction Group Switzerland to withdraw by March 31, 2003.
The Central Board of the SBV decided to have the delegates vote in writing on the motion to amend the articles of association. Since more than 1/8 of the delegates rejected the amendment, no extraordinary Delegate Assembly was convened. On March 26, 2003, the General Assembly of the SBV adopted the requested amendment to the articles of association.
The plaintiff challenged this resolution of the General Assembly, as the motion of the Delegate Assembly had not been properly made.
Considerations
The Federal Supreme Court held that according to the articles of association of the SBV, resolutions of the Delegate Assembly must generally be passed at a meeting and not by circular procedure. A written majority decision of the delegates is only permissible if all delegates agree. Since in the present case neither the circular procedure nor the unanimity of the delegates was given, the motion of the Delegate Assembly to the General Assembly was invalid.
This defect in the procedure of the Delegate Assembly leads to the invalidity of the resolution of the General Assembly to amend the articles of association based on it. The Federal Supreme Court justifies this by stating that the two-stage procedure for amending the articles of association (motion of the Delegate Assembly, resolution of the General…