Facts
The appellant, the Federal Office of the Commercial Register, argues that the lower court wrongly considered the Judicial Directorate of the Canton of Zurich to be competent for handling the appeal by A. against a decision of the Commercial Register Office Zurich. The lower court should have declared the decision of the Judicial Directorate null and void, as it is not an upper cantonal judicial instance within the meaning of Art. 165 para. 2 of the Commercial Register Ordinance (HRegV).
The Commercial Register Ordinance of 17 October 2007 provides for a single-stage cantonal appeal process against decisions of the commercial register offices in Art. 165 para. 2 HRegV. Each canton must designate an upper court as the sole appeal instance.
The lower court had wrongly not applied the regulation of the single-stage appeal process in Art. 165 para. 2 HRegV. The Judicial Directorate of the Canton of Zurich is not an upper cantonal judicial instance within the meaning of this provision and is therefore neither materially nor functionally competent to handle appeals against decisions of the Commercial Register Office Zurich.
Considerations
The Federal Supreme Court examines whether the Federal Council, in issuing Art. 165 para. 2 HRegV, has adhered to the limits of the powers granted to it in Art. 929 para. 1 of the Swiss Code of Obligations (OR).
The wording of the terms "procedure" and "appeal" in Art. 929 para. 1 OR gives the Federal Council a wide scope of regulation, which can also include the regulation of the appeal process. The legislative history of Art. 929 para. 1 OR shows that the Federal Council was to be granted the "widest possible scope" with this provision.
Even a…