Lack of legal interest in a declaratory action on the nullity of revoked dissolution resolutions of a stock corporation

Facts

Parties and proceedings: The appellant [A.] was a shareholder of [F. AG] and a member of the board of directors of several interconnected stock corporations based in U. ([B. AG] , [C. AG] , [D. AG] , [E. AG] and [F. AG] ). The five companies were the respondents.

Background: On 8 February 2016, the boards of directors and general meetings of [B. AG] , [C. AG] , [D. AG] and [E. AG] resolved to dissolve them for the purpose of liquidation and each appointed [H. GmbH] as liquidator. The appellant voted against the dissolution. On the same day, commercial register blocks were requested and imposed, which the Cantonal High Court of Zug confirmed on 9 November 2016. The dissolution resolutions were never entered in the commercial register.

Action and revocation: On 15 February 2017, the appellant filed an action with the Cantonal Court of Zug seeking a declaration that the dissolution resolutions of 8 February 2016 were null and void, as well as the final rejection of the application for entry in the commercial register. She complained of the disregard of company law rules on competence, passing of resolutions and representation. On 13 April 2018 and 31 July 2018 respectively, the dissolution resolutions were revoked. The defendant companies then requested that the proceedings be struck off as moot, while the appellant maintained her declaratory requests.

Lower courts: The Cantonal Court of Zug instructed the commercial register office to finally reject the application for entry of the dissolution resolutions, otherwise denied a legal interest in a declaration and struck the proceedings off as moot. The II. Appeals Division of the Cantonal High Court declined to hear the appeal and referred the file to the I. Civil Division to examine whether it could be reclassified as an appeal (Berufung). The latter dismissed the appeal by judgment of 21 April 2020.

Before the Federal Supreme Court: The appellant requested that the judgment of the cantonal high court be set aside and the matter remitted to the lower court. No responses were requested.

Considerations

Admissibility: The contested judgment is a final decision of a superior cantonal court (Art. 75 and 90 FSCA). The amount in dispute exceeds the threshold of CHF 30,000.-- under Art. 74 para. 1 let. b FSCA. The civil law appeal is in principle admissible. A formal substantive request is indeed lacking (Art. 42 para. 1 FSCA), but the reasoning makes clear that a declaration of the nullity of the dissolution resolutions is sought.

Legal interest in a declaration: A declaratory action requires a current and practical interest worthy of protection (Art. 88 CPC, Art. 59 para. 2 let. a CPC). In the area of company law, a broad concept of interest applies, under which the intention to safeguard the company's interests suffices, provided there is no abuse of rights. A legal interest in a declaration is generally lacking where an action for performance or an action for constitutive relief is available; the declaratory action is in that respect subsidiary.

Absence of uncertainty after the revocation: The appellant does not claim that the distribution of assets had already begun or that the validity of the revocation resolutions is questionable. Either the dissolution resolutions were null from the outset or they were validly revoked. From the time of the revocation resolutions, the companies in any event were no longer in the liquidation stage, so there is no longer any uncertainty.

Uncertainty in the period between dissolution and revocation: The appellant argued that the companies had existed under the regime of null liquidation resolutions. However, she did not explain what concrete benefit a declaration of nullity would bring to her or to the companies compared with an action for performance or constitutive relief. Procedural law does not serve to adjudicate abstract legal questions without effect on concrete legal relationships.

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