Facts
The applicant, X., is a minority shareholder of the Société Anonyme du Journal de Genève and de la Gazette de Lausanne (SAJGGL). The SAJGGL was transformed into a holding company and its main activity is to hold 47% of the share capital of SA Le Temps. The liquidator, [B.], was appointed in 2001. The applicant brought a lawsuit to obtain the revocation of [B.] as liquidator, alleging that he had not fulfilled his duties and that there were just causes for his revocation.
The key facts are as follows: [B.] recommended that the shareholders not inform the judge despite the SAJGGL's over-indebtedness; [B.] concealed information from minority shareholders; [B.] concluded a postposition agreement between SAJGGL and SA Le Temps, which created a conflict of interest; [B.] decided to partially execute the sales agreement of May 31, 2001, which deprived SAJGGL of liquidity; [B.] proposed to reduce the share capital of SAJGGL, which allowed the majority shareholders to offset the amounts still owed to SAJGGL.
Considerations
The cantonal court dismissed the application for revocation of [B.], considering that the grounds alleged by the applicant did not constitute just causes within the meaning of art. 741 para. 2 CO. However, the Federal Court considered that the cantonal court had not taken into account important elements, such as B.'s failure to fulfill his duty to inform minority shareholders, the conflict of interest created by the postposition agreement, and the operations that deprived SAJGGL of liquidity.
The Federal Court also considered that the cantonal court had violated art. 741 para. 2 CO by not retaining the existence of just causes for revocation. The retained elements reveal that [B.] failed to fulfill his obligations on several occasions and that his behavior created an objective risk that the liquidation operations would not be carried…