Restitution of commissions paid to the bank by companies belonging to the same group

Facts

A. (the claimant) has a securities portfolio with Bank X. AG (the defendant). After the death of his father, the latter's securities were transferred to the accounts of the claimant, his mother and his sister, managed by the defendant under asset management contracts. In this context, the defendant received distribution commissions (Bestandespflegekommissionen) from companies related to the group to which it belongs, as well as from external companies, for the marketing of certain investment products. The claimant claimed the restitution of these commissions based on Art. 400 para. 1 CO.

Considerations

The Federal Court considers that the distribution commissions paid by the companies belonging to the same group as the defendant are subject to the restitution obligation provided for in Art. 400 para. 1 CO. Indeed, the fact that the defendant is part of the same group as the companies that paid these commissions does not allow the application of this provision to be excluded. Although corporate group law takes into account the economic unity of the group in certain areas, this does not mean that intra-group payments should be considered economically neutral and excluded from the scope of Art. 400 para. 1 CO. As an asset manager, the defendant was required to invest the claimant's assets solely in the latter's interest.…