Deregistration of a public limited company taken over by another company

Facts

Mr. S.A. took over the assets and liabilities of C. SA by a merger contract. However, the management of the acquiring company did not address a public call to the creditors of the dissolved company in the Swiss Official Gazette of Commerce, as required by Art. 748 para. 1 CO. The Commercial Register Officer therefore refused to proceed with the deregistration of the acquired company, a decision confirmed by the Department of Justice of the Canton of Neuchâtel. Mr. S.A. then filed an administrative law appeal to the Federal Tribunal.

Considerations

The Federal Tribunal dismissed the appeal and confirmed the contested decision. According to case law, the public call to creditors is a mandatory formality, even if the dissolved company declares that it knows all its creditors. Indeed, a company may have creditors whose existence it is unaware of, and the public call is precisely intended to allow these creditors to come forward. Furthermore, Art. 748 para. 7 CO links the deregistration of the acquired company to the payment of creditors or the provision of security in their favour.…