Facts
The plaintiff and shareholder [A.] of [B. AG] (formerly [C. AG] ) requested a special audit after the general meeting rejected his proposal. The single judge of the District Court of Zurich and the High Court of the Canton of Zurich dismissed the request. The plaintiff appealed to the Federal Court with the request that a special auditor be appointed to clarify the facts he had specified.
[B. AG] is a stock corporation in which the plaintiff [A.] holds 34 of a total of 200 registered shares. At the general meeting of September 17, 2004, the plaintiff asked the board of directors and the auditor various questions, which in his opinion were not adequately answered.
The plaintiff requested a special audit regarding various matters, including the company's annual accounts for the financial years 1997-2003 and the transfer of business to [D. AG] .
Considerations
The Federal Court examined the plaintiff's appeal and came to the conclusion that the lower court had rightly dismissed the request for a special audit. The plaintiff had not made it credible that the company or he himself had been damaged by the alleged violations of the law or the articles of association by the company's organs.
The Federal Court stated that the right to appoint a special auditor is an independent membership right of the shareholders and that the applicant must make it credible that there is a connection between the shareholder rights targeted by him and the subject of the requested investigation. However, the applicant had not explained to what extent the detailed information to be obtained through the special audit was necessary for…