Standing of the Federal Office of Justice in Commercial Register Matters

Facts

The Federal Office of Justice (FOJ) lodged an appeal with the Administrative Court against the ruling of the Justice Directorate of the Canton of Zurich, which had dismissed an appeal by X. GmbH against its dissolution due to lack of a registered office. The Administrative Court denied the FOJ's standing and therefore did not consider the appeal. The FOJ then lodged an appeal in civil matters with the Federal Supreme Court, requesting that the Administrative Court's decision be set aside.

X. GmbH was dissolved by the Commercial Register Office of the Canton of Zurich on 2 March 2010 due to lack of a registered office. X. GmbH and its managing director A. lodged an appeal against this ruling, which was dismissed by the Justice Directorate of the Canton of Zurich. The FOJ then lodged an appeal with the Administrative Court on 27 July 2010, but it was dismissed due to lack of standing.

Considerations

The Federal Supreme Court had to decide whether the FOJ had standing to lodge an appeal on behalf of the Federal Commercial Register Office (FCRO) in place of the FCRO. The FOJ relied on the right of higher hierarchical levels to take over individual cases for decision pursuant to Art. 47 para. 4 of the Government and Administration Organisation Act (GAOA), which allows higher administrative units and the Federal Council to take over individual cases for decision at any time.

The Administrative Court had argued that the FCRO was entitled to lodge an appeal pursuant to Art. 5 para. 2 lit. e of the Commercial Register Ordinance (CRO), but not the FOJ. However, the Federal Supreme Court followed the FOJ's argument that the FCRO's power to lodge an appeal did not mean that the FOJ should be denied the opportunity to decide in place of the newly competent, subordinate organisational level.

The Federal Supreme Court found that the FOJ, as a higher administrative unit, was entitled to lodge an administrative appeal in place of the FCRO based on the right to take over individual cases. The FOJ's standing was therefore affirmed, and its appeal was considered. The Federal Supreme Court set…