Facts
[A.X. AG] (Defendant) is a joint-stock company, whose share capital was originally held 99.2% by [B.X. AG] (Debtor in Composition Proceedings). As part of a restructuring concept, the operating business activities were transferred from the Debtor in Composition Proceedings to the Defendant, with the aim of selling the Defendant together with the other subsidiaries as a unit. At the auction of the Defendant's shares, [Y.] SpA (Plaintiff) acquired 99.2% of the share capital. However, the Defendant refused to register the Plaintiff as a shareholder in the share register, on the grounds that the Plaintiff was a competitor company and the offer to acquire the shares at the actual value was not sufficiently clarified.Considerations
The Federal Supreme Court considers the Defendant's conduct to be an abuse of rights. The Defendant had taken over the operating business as part of the restructuring concept, with the aim of selling the shares together with the subsidiaries as a unit. By now refusing to register the acquirer, in order to instead favour a management group supported by the Board of Directors as the buyer, it is preventing the implementation of the restructuring concept. This contradictory behaviour, which runs counter to the legitimate expectations of the composition creditors, does not deserve legal protection. Even though the Defendant is generally entitled to a right of refusal under the transfer…