Appointment of an Auditor for a Public Limited Company

Facts

[X. AG] is a public limited company with its registered office in [Y.] . Its purpose is the disposal of scrap, metals, paper, plastics, hazardous waste and other materials, as well as the provision of transport services. The share capital amounts to CHF 150,000 and is divided into 150 registered shares with a nominal value of CHF 1,000 each. The two shareholders [AX.] and [B.] each hold 50% of the shares.

The Commercial Register Office of the Canton of St. Gallen informed the President of the Commercial Court that [X. AG] no longer had an auditor and that there was also no opting-out pursuant to Art. 727a para. 2 CO. The President of the Commercial Court set the company a deadline to restore the lawful situation, which expired unused. Thereupon, the Commercial Register Office applied for the dissolution and liquidation of the company.

[X. AG] applied for an auditor to be appointed for it pursuant to Art. 731b para. 1 no. 2 CO. [AX.] , on the other hand, applied for the dissolution of the company pursuant to Art. 731b para. 1 no. 3 CO.

Considerations

The Federal Supreme Court holds that in the absence of an auditor, which is due to a deadlock in the shareholder base, the judicial appointment of the missing auditor pursuant to Art. 731b para. 1 no. 2 CO is generally the appropriate measure. The dissolution of the company under Art. 731b para. 1 no. 3 CO is only permissible as a last resort if milder measures do not lead to the goal.

In the present case, the lower instance wrongly ordered the dissolution of [X. AG] , without first examining the appointment of an auditor pursuant to Art. 731b para. 1 no. 2 CO. The lower instance incorrectly assumed…