Application of the summary procedure to the action for dissolution of the public limited company based on art. 731b CO

Facts

On 8 February 2011, X. and Y. filed a request for dissolution of the public limited company Z. SA with the President of the Civil Court of the district of ... in the canton of Fribourg, invoking shortcomings in the organization of the company within the meaning of art. 731b CO. The company mainly concluded that the request was inadmissible. The President declared the request admissible in terms of material competence, considering that the summary procedure was applicable to the action for dissolution of the company. The company appealed to the 1st Civil Court of Appeal of the Fribourg Cantonal Court, which admitted the appeal and declared the request inadmissible. The applicants filed a civil law appeal with the Federal Court.

The parties involved are X. and Y. (applicants) and Z. SA (defendant). The courts involved are the Civil Court of the district of ..., the 1st Civil Court of Appeal of the Fribourg Cantonal Court, and the Federal Court. The key dates are 8 February 2011 (filing of the request), 1 April 2011 (company's response), 21 July 2011 (President's decision), 7 September 2011 (judgment of the 1st Civil Court of Appeal), and 7 March 2012 (Federal Court's judgment).

Considerations

The Federal Court examined whether the summary procedure was applicable to the action for dissolution of the public limited company based on art. 731b CO. Art. 250 let. c ch. 6 and 11 CPC subjects measures intended to remedy shortcomings in the organization of the company to the summary procedure, including the setting of a deadline and the appointment of an audit body.

The Federal Court considered that art. 731b CO grants the judge the competence to remedy shortcomings in the organization of the company and that this provision is not exhaustive. The judge may order a measure other than the one requested by the applicant party. The Federal Court also examined the preparatory work of the CPC and found that art. 250 let. c ch. 6 and 11 CPC was drafted on the basis of the old cantonal laws, without taking into account the entry into force of art. 731b CO.

The Federal Court concluded that measures intended to remedy shortcomings in the organization of the company,…