Registration of Individual Signatory Power of a Board Member in the Commercial Register

Facts

Hybrida AG, a corporation founded in 1956 in Buochs, had stipulated in its articles of association that the company is bound by the collective signature of two members of the Board of Directors. The two-member Board of Directors appointed the managing director Franz Tanner, whose place of residence was Schüpfheim, as the authorized signatory with individual signatory power. This power of attorney was registered in the Commercial Register of the Canton of Nidwalden and exercised without objection.

On September 27, 1958, the General Meeting resolved to transfer the registered office of the company to Schüpfheim. The Commercial Register Office of the Canton of Lucerne refused to register this transaction, as a member of the Board of Directors with collective signatory power could not be granted individual signatory power. Upon appeal by Hybrida AG, the Government Council of the Canton of Lucerne instructed the office to register the relocation of the registered office. However, the Commercial Register Office of Lucerne refused again, arguing that the registration application was insufficient. Upon further appeal, the Government Council instructed the office to comply with the registration application.

The Federal Office for the Commercial Register informed Hybrida AG that it would not approve the registration of the relocation if individual signatory power was granted to the Board member Tanner, who had collective signatory power. Thereupon, Hybrida AG filed an appeal against this decision.

Considerations

The Federal Supreme Court ruled that the Commercial Register must register not only undisputedly permissible transactions, but also those whose permissibility is in dispute. The Commercial Register authorities only have to examine whether a transaction is obviously contrary to substantive civil law, not whether it is legally effective.

The Federal Office takes the view that a member of the Board of Directors cannot at the same time be an authorized signatory. However, the Federal Supreme Court sees no obvious contradiction to the law in this. It states that the authorized signatory must be a person different from the business owner, but this does not mean that a Board member cannot also be an authorized…