Facts
Index Management AG was founded on November 18, 1980 and applied for registration in the Commercial Register on November 24, 1980. However, the Commercial Register Office of the Canton of Zurich demanded that Article 8 paragraph 2 of the articles of association, which provided for the ordinary general meeting within eight months after the end of the financial year, be adapted to the six-month period pursuant to Article 699 paragraph 2 CO. As the founders did not comply with this, the Commercial Register Office rejected the registration. The Directorate of Justice of the Canton of Zurich also dismissed the appeal filed against this.
The founders of Index Management AG then filed an administrative court appeal with the Federal Supreme Court, requesting that the Commercial Register Office be instructed to register the company, if necessary under the condition of adapting Article 8 paragraph 2 of the articles of association within a certain period.
Considerations
The Federal Supreme Court dismissed the appeal. It concluded that Article 699 paragraph 2 CO is a mandatory provision that requires the ordinary general meeting to be held within six months after the end of the financial year. Article 8 paragraph 2 of the articles of association of Index Management AG contradicts this provision, which is why the Commercial Register Office rightly rejected the registration.
The Federal Supreme Court stated that the Commercial Register Officer is obliged under Article 940 CO to reject the registration of a public limited company if…