Facts
The public limited company X. filed a complaint against company [Z.] and [W. SA], alleging that the award of the "front" part of the hotel complex to company [Z.] and the "rear" part to [W. SA] was null and void, as it was operated in violation of the provisions of the Code of Obligations regarding the takeover of assets. Company X. argued that the award was null and void, insofar as it was operated in violation of art. 628 para. 2 CO.
The facts of the case are as follows: company [Z.] was established for the purpose of operating businesses, in particular in the hotel and related fields, including the acquisition of real estate for hotel or commercial operation. At the disputed auction, it acquired the "front" part of X.'s complex, i.e. a building comprising a hotel, restaurants, a casino, a shopping center, a theater, parking facilities, and four apartments. As for [W. SA], whose purpose is the operation of hotel establishments, trade, representation, import-export, and distribution of products, as well as the provision of services and management of assets, it acquired the "rear" part of the complex, i.e. a building comprising the hotel extension, commercial and exhibition spaces, offices, housing, technical facilities, storage facilities, and an underground parking garage.
Considerations
The Federal Court examined the question of whether the acquisition of assets at auction by a public limited company falls under art. 628 para. 2 CO. According to this article, if the company takes over assets or plans to take over assets from a shareholder or a third party, the articles of association must indicate the purpose of the takeover, the name of the alienator, and the company's consideration.
However, the Court considered that ordinary transactions, which are part of the company's normal course of business, do not constitute a takeover of assets within the meaning of art. 628 para. 2 CO.…