Refusal to Provisionally Prohibit the Registration of a Merger Decision in the Commercial Register

Facts

The public limited company for legal protection in merger matters (FUSAG), as a shareholder and representative of other shareholders of the company Ursina-Franck AG, requested the President of the Bern Court to provisionally prohibit the registration of the merger decision of this company with Nestlé-Alimentana AG in the commercial register, pending the judgment of the action for annulment that it intended to file under Art. 706 CO. The President of the Court initially ordered this provisional measure, but then lifted it following the rejection of the application for an order of interim measures. FUSAG appealed against this decision.

Considerations

The Federal Tribunal considers that the appeal for reform is not admissible, as it is not a final judgment but a decision on an interim measure. FUSAG did not ask the judge to rule definitively on the validity of the merger, but only to provisionally prohibit its registration in the commercial register.

Regarding the admissibility of the application for an interim measure, the Federal Tribunal notes that neither Art. 706 CO nor Art.…