Facts
Parties: Appellants: [A. AG] and [B. AG] , Respondent: [C. AG] .
Facts: [C. AG] is a holding company without operational activities. The sole board member is [D.] . The audit firm was deleted in 2020. The shares of the company are divided among various shareholders. After an annual general meeting in 2019, new shares were issued. The appellants requested the removal of [D.] as a board member and the appointment of representatives to the board as well as a new audit firm. The cantonal court and the higher court dismissed the appeal and confirmed the appointment of [D.] for six months with the obligation to convene a general meeting.
Remedies: The appellants requested the annulment of the judgment of the higher court and the appointment of representatives to the board as well as a new audit firm.
Considerations
The conditions for a judgment on the merits are met, and the appeal must be considered. The appeal in civil matters can allege violations of law under Art. 95 and 96 FSCA. The Federal Supreme Court bases its judgment on the facts of the lower court, unless they are obviously incorrect CO based on a violation of law.
Under Art. 731b CO, a shareholder CO creditor may request the court to take the necessary measures, particularly if the company lacks a required body CO is not lawfully composed. The court may set a deadline for restoring the lawful state, appoint the missing body CO a trustee, CO dissolve the company. The measures are in a graduated relationship, and the court must observe the principle of proportionality.
The lower court relied on the case law of the Federal Supreme Court and carried out a careful balancing of interests. It decided that the appointment of [D.] as a board member for six months with the obligation to convene a general meeting is the appropriate and proportionate measure to remedy the organizational defect. The…