Facts
The Swiss Federal Railways SBB (SBB) decided on 25 May 2005 to integrate their 100%-owned subsidiary, the Etzelwerk Hydroelectric Power Plant AG (EWAG), through an absorption merger. The SBB reported the merger to the Commercial Register Office Bern-Mittelland on 16 June 2005, but the Federal Office for the Commercial Register (EHRA) suspended the registration.
The SBB requested the EHRA to approve the registration and, in the event of rejection, to issue a appealable ruling. By decision of 23 December 2005, the EHRA refused approval, as the SBB was a public law institution within the meaning of Art. 2 lit. d MergA and thus fell within the scope of Art. 99 ff. of the aforementioned ordinance.
The SBB applied to the Federal Court to overturn the EHRA's decision and approve the registration of the merger between the SBB and EWAG in the Commercial Register Bern-Mittelland. The EHRA called for the appeal to be dismissed.
Considerations
The Federal Court dismissed the appeal. It stated that the SBB was to be qualified as a public law institution within the meaning of Art. 2 lit. d MergA, as it was a special statutory company of public law based on a public law basis and acquired its legal personality by law.
The court found that the regulation of the SBB's organization was based on that of the private law company, but could not be simply equated with it. The SBB was not practically subject to the law of the private law company in its entirety, and the deviations were not minor.
The court also rejected the SBB's complaint that Art. 22 Abs. 1 SBBA had been violated by not approving the requested registration. It stated…