Facts
The X. Holding AG, owner of 44.5 % of the shares of Y. AG, applied for the appointment of a special auditor. The court of first instance of the Civil Court of Basel and the Court of Appeal of the Canton of Basel-Stadt rejected the application, as X. Holding AG had not exhausted the right to information of the board of directors. X. Holding AG appealed to the Federal Court, which upheld the appeal.
X. Holding AG and the shareholder group B each have two members on the board of directors of Y. AG. X. Holding AG has a veto right on fundamental corporate policy issues and business transactions. Y. AG is based in Basel and X. Holding AG in Zurich.
Considerations
The Federal Court ruled that the right of the shareholder to initiate a special audit may not be denied because the shareholder has not exhausted the right to information of the board of directors. The lower court had argued that X. Holding AG should have exhausted the right to information of the board of directors before it could demand a special audit.
The Federal Court stated that the right to information or inspection, which belongs to the shareholder as such, is solely related to the information right of the shareholder regulated in Art. 697 CO. The institution of the special audit was introduced in 1991 with the aim of improving the information situation of shareholders.
The Federal Court ruled that the opinion of the lower court, according to which a shareholder who is itself a member of the board of…