Rejection of the Absorption Merger of a Private Limited Company by a Public Law Institution

Facts

The Swiss Federal Railways (SBB), a special statutory public limited company, wanted to integrate the Etzelwerk AG hydropower plant, a 100% subsidiary of the SBB, into the SBB through an absorption merger. However, the Federal Office of the Commercial Register (EHRA) refused to approve the registration of this merger in the Commercial Register. The SBB subsequently filed an administrative court appeal against the decision of the EHRA. The Federal Supreme Court dismissed the appeal.

Considerations

In its reasoning, the Federal Supreme Court stated:

• The SBB is to be classified as a special statutory public limited company and therefore falls under the term "public law institution" pursuant to Art. 2 (d) of the Merger Act (MergA). It cannot therefore be equated with a private limited company. - The special rules for public law institutions under Art. 99 et seq. MergA are applicable to the…