Non-entry on civil appeal for lack of amount in dispute and fundamental importance in case of organisational defect (special administrator, Art. 731b CO); dismissal of the subsidiary constitutional complaint

Facts

Parties and lower instances: The appellant ([A.] ) and [C.] are shareholders and, until now, managing directors of [B. GmbH] (respondent) with sole signing authority. Differences of opinion exist between them.

Background: At the request of [C.] , the Civil Court of the Canton of Basel-Stadt revoked the appellant's sole signing authority by order of 27 September 2019; joint signature by two persons now applies. Since then, only [C.] has had sole signing authority.

Proceedings: On 9 January 2020, the appellant filed a request in summary proceedings with the Civil Court against the respondent, requesting, among other things, the appointment of a special administrator. He relied on defects in the company's organisation (Art. 731b CO). The Civil Court dismissed the request by decision of 14 April 2020. The Court of Appeal of the Canton of Basel-Stadt (three-judge panel) dismissed the appeal by decision of 11 June 2020 (ZB.2020.9).

Requests before the Federal Supreme Court: By civil appeal, the appellant requested that the decision be set aside and a special administrator be appointed, or alternatively that the matter be remitted to the lower instance; he also requested suspensive effect with regard to the party compensation. The presidential order of 14 July 2020 dismissed the request for suspensive effect. No responses were obtained.

Legal question: Whether an organisational defect within the meaning of Art. 731b CO exists, in particular whether a conflict of interest of the sole signatory managing director [C.] leads to the organ's inability to function, and whether the amount-in-dispute and admissibility requirements of the civil appeal are met.

Considerations

Final decision and amount in dispute: The contested decision of the Court of Appeal is a final decision (Art. 90 FSCA) of a last cantonal instance (Art. 75 FSCA). As there is neither an employment nor a tenancy case, the civil appeal is admissible only if the amount in dispute is at least CHF 30,000.-- (Art. 74 para. 1 lit. b FSCA). The lower instance set the amount in dispute at CHF 20,000.-- based on the respondent's share capital. The Federal Supreme Court notes that case law in organisational defect proceedings is inconsistent: in some cases the nominal company capital is relied upon, in others the economic effects of the measures; legal scholarship proposes further criteria such as balance sheet total or turnover. The question may be left open, because the appellant himself states an amount in dispute of CHF 20,000.-- and provides no further details that would allow an assessment at discretion (Art. 42 para. 2 in conjunction with Art. 51 para. 2 FSCA).

Fundamental importance: As the amount in dispute is not reached, the appeal would be admissible only if a legal question of fundamental importance arises (Art. 74 para. 2 lit. a FSCA), which must be substantiated in the appeal (Art. 42 para. 2 sentence 2 FSCA). The lower instance held that conflicts of interest of organ members may lead to the organ's inability to function and thus to an organisational defect under Art. 731b CO, but that the appellant had not made credible that [C.] no longer handled company affairs independently; no conflict of interest was apparent.

No legal question of fundamental importance: The appellant presented the facts in detail from his own perspective and asked whether a court in proceedings under Art. 731b CO may itself decide what is in the company's interest. The Federal Supreme Court sees in this merely a criticism of the incorrect application of Art. 731b CO to the specific facts; framing it as a question does not change this. The appellant showed neither considerable legal uncertainty nor a need for clarification and did not refer to case law or doctrine. The substantiation requirements of Art. 42 para. 2 sentence 2 FSCA are not met. The civil appeal is not entered upon.

Subsidiary constitutional complaint: The Federal Supreme Court examines the constitutional complaint (Art. 113-119 FSCA), although the appellant does not expressly lodge it, since he asserts violations of constitutional rights. For complaints concerning fundamental rights, a qualified duty to raise objections applies (Art. 116, 117 in…