Inadmissibility of the issuance of participation certificates by a cooperative

Facts

The Federal Office of the Commercial Register (FOCR) complained against the decision of the lower instance, according to which the issuance of participation certificates by the cooperative X. was permissible. The Federal Court held that the issuance of participation certificates by a cooperative is not permissible under the applicable law.

Considerations

The Federal Court stated that the law on cooperatives (Art. 828 et seq. CO) does not contain any regulation that would provide for financing through participation certificates or define the corresponding rights of the participants. In contrast, the law on shares in Art. 656a et seq. CO contains detailed rules on participation certificates.

The Federal Court concluded that the legislator only wanted to consider the admissibility of participation certificates within a limited framework and with special protective measures in accordance with the law on shares. Since these protective measures are missing in the…