Facts
The appellants (a shareholder and her husband or father, both represented by counsel) asked the Thal-Gäu District Court to convene, by judicial order, a general meeting of the respondent, a stock corporation, under Art. 699 para. 4 CO. At this general meeting the appellant was to be elected as a board member with sole signing authority and the existing sole board member was to be removed.
The background is a long-running dispute over the agricultural business 'Bauernhof C.' in U. and V. The owners are the board of directors (B.) and the respondent. The appellant had contributed the farm to the newly founded respondent in 1988. A loan of CHF 550'000.-- was secured in 1988 by a pledge agreement that transferred all shares to B. as a pledge, and provided for the transfer of voting rights and a purchase option. On 3 January 1995 B. and the appellant concluded a share purchase agreement for 50 shares, with the purchase price offset against the loan. Two shares remained with the appellants in trust. In 1998 a capital increase and a shareholders' agreement took place, under which the appellants' shares were to pass to B. free of charge upon termination of the lease agreement or upon the appellant's death; the 11 shares of the appellants were already transferred to B. when the agreement was concluded.
In proceedings 4A_260/2018 the Federal Supreme Court held that the acquisition of the shares was conditionally ineffective until an acquisition approval under the RLRA was granted. The approval was refused at first instance; the appeal proceedings were pending. An Administrative Court granted the approval by decision of 6 November 2020, but that decision had not become final and constituted a genuine novum before the Federal Supreme Court.
The President of the District Court dismissed the application on 6 May 2020 for lack of active standing. The Higher Court of the Canton of Solothurn confirmed this on 28 August 2020, because the shareholder status was not made credible by the documents submitted. The appellants filed a civil law appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court first examined the admissibility of the novum (decision of the Administrative Court of 6 November 2020). Genuine novums are in principle disregarded before the Federal Supreme Court (Art. 99 para. 1 FSCA), except where they concern prerequisites for a decision on the merits. The Federal Supreme Court left open the question of a protectable interest (Art. 76 para. 1 lit. b FSCA), since it was doubtful whether the legal interest in protection had lapsed, and in any event the appeal was unfounded.
The Federal Supreme Court then affirmed its jurisdiction: the decision is a final appellate decision of a higher cantonal court (Art. 90, 75 FSCA). The amount in dispute of CHF 30'000.-- (Art. 74 para. 1 lit. b FSCA) is calculated on the basis of the nominal value of the shares and is met, since the shareholder status is pending.
On the merits, the Federal Supreme Court held that in an application for convening a meeting under Art. 699 para. 4 CO only formal questions are to be examined, in particular the shareholder status, the 10 per cent shareholding required under Art. 699 para. 3 CO, and an unsuccessful request to the board of directors. Shareholder status is already made credible if certain elements speak in its favour. In addition, the prohibition of abuse of rights (Art. 2 para. 2 CC) must be observed; manifestly abusive applications are to be dismissed.
The lower court had made the credibility of the material entitlement to registered shares under Art. 689a CO dependent on the company having kept a share register and having culpably refused an entry. This reasoning is not sustainable: no party had asserted the existence of a share register, and the burden of proof does not rest with the appellants but with the respondent (Art. 8 CC). A registered shareholder must be able to establish their standing even without an entry in the share register.
Despite this violation of law, the Federal Supreme Court dismissed the appeal, because the appellants'…