Facts

Parties:

  • Appellant: [A. AG] , represented by attorney Dr. Urs Fasel
  • Respondents: [B.B.] and [C.B.] , both represented by attorney Franz Müller

Facts:

  • [A. AG] is a joint-stock company based in [U.] with a share capital of CHF 600,000.--, divided into 600 registered shares.
  • [B.B.] holds 67 shares, [C.B.] holds 2 shares.
  • [B.B.] was a long-time managing director and board member of [D. AG] , a 100% subsidiary of [A. AG] , but was dismissed on August 25, 2016.
  • On June 25, 2019, and November 4, 2019, general meetings were held at which [B.B.] and [C.B.] made requests for information, particularly regarding the increase in personnel expenses.
  • A motion for a special audit was rejected by 507 to 79 votes.
  • On February 3, 2020, [B.B.] and [C.B.] filed a petition with the Commercial Court of the Canton of Bern, pursuant to Art. 697b CO, to appoint a special auditor.
  • The Commercial Court partially granted the petition and limited the scope of the special audit to the reasons for the increase in personnel expenses in 2018.

Appeal:

  • [A. AG] requested the complete dismissal of the petition for a special audit.

Considerations

The appeal is admissible, as the fundamental order for a special audit under Art. 697b CO qualifies as a partial decision under Art. 91 lit. a FSCA. The appeal is thus admissible without the conditions of Art. 92 f. FSCA needing to be met.

The appellant argues that the lower court wrongly appointed a special auditor. Any shareholder can request the general meeting to clarify certain facts through a special audit if this is necessary for the exercise of shareholder rights and if the right to information CO the right to inspection has already been exercised (Art. 697a para. 1 CO). The respondents wish to clarify whether the organs of the appellant have received excessive services. This information is particularly necessary for bringing a claim for restitution under Art. 678 para. 2 CO.

The lower court considered that the information provided by the board of directors was unusable for the respondents and did not explain the…