Reduction of Participation Capital without Consent of Participants

Facts

The Swiss Aluminium AG resolved at its ordinary general meeting on 22 April 1985 to nominally reduce the par value of its shares and participation certificates by half. However, on 23 April 1987, the Federal Commercial Register Office refused to register the capital reduction, as it was of the opinion that the consent of the community of participants was required for this (Art. 657 para. 5 CO). The Swiss Aluminium AG then filed an administrative court appeal against this decision.

Considerations

The Federal Supreme Court decided that the consent of the community of participants pursuant to Art. 657 para. 5 CO was not required in this case. The participation certificate is considered a special form of participation certificate and is subject to its provisions. Although the holders of participation certificates form a community by law, whose resolutions can also bind the minority. However, the decision-making competence of this community is unclear, especially with regard to rights that correspond to the pecuniary claims of the shareholders.

The Federal Supreme Court concluded that Art. 657 para. 5 CO is not applicable if a general meeting resolution does not affect the participants, i.e. their participation rights are not impaired in terms of form or content.…