Facts
The appellant, the Parish [A.] (hereinafter: the Parish or the Association), is an association constituted on 15 December 2000 under art. 60 ff CC, whose purpose is to organise the secular life of the parish.
According to the statutes, the right to take part in the general meeting requires being a parishioner, contributing financially and regularly to the life of the parish (unless there is a concrete, sustained and recognisable activity in service of the community for at least twelve months), being domiciled in the region of [U.] and being at least 18 years of age. The Parish Council, composed of eleven members, keeps the register of members. No minimum contribution has been set by formal decision; a 2016 meeting had only proposed a contribution of CHF 40 per month to the Council.
An ordinary general meeting convened for 15 October 2017 could not be held, as the non-member faithful refused to vacate the premises.
Between 2 and 5 November 2017, one hundred and seven persons (the one hundred and seven signatories), of whom twenty-two are recognised as members by the Parish, asked the Parish Council to convene an extraordinary general meeting with an agenda comprising the review of the 2016 accounts, a review of architects' fees, the exclusion of four members of the Council, the election of an interim churchwarden, statutory amendments and a decision on relations with the company [S.] . The Council disputed the membership status of the signatories, without producing the register of members.
The respondents, eleven persons represented by their counsel, seised the Geneva Court of First Instance on 18 January 2018. That court dismissed the application on 7 May 2018. On appeal, the Geneva Court of Justice quashed that judgment on 11 December 2018 and ordered the convocation of the meeting; twenty certificates from signatories confirming their membership status had been produced, and the certificate of a member of the Council, [Q.] , confirmed these statuses.
The Parish lodged a civil law appeal with the Federal Supreme Court on 18 February 2019, principally seeking the dismissal of the respondents' claims and, in the alternative, the remittal of the case. Suspensive effect was granted on 15 March 2019. The proceedings were suspended and then resumed in August 2019. The respondents requested that the appeal be dismissed.
Considerations
The Federal Supreme Court examines the civil law appeal, which is admissible because the matter is not of a pecuniary nature (art. 90, 72 para. 1, 75, 76 para. 1, 100 para. 1 FSCA). It applies the law of its own motion (art. 106 para. 1 FSCA) but only examines duly substantiated complaints (art. 42 para. 2 FSCA). It rules on the facts established by the lower authority, unless arbitrary within the meaning of art. 9 Cst. (art. 105 para. 2 FSCA), and appellatory criticisms are inadmissible.
The appeal first concerns the quorum for convocation set out in art. 64 para. 3 CC, which requires convocation when one-fifth of the members so request. The Court of Justice defined membership by requiring a bilateral accession (a constitutive act of status, according to doctrine and case law), which is not satisfied by mere parishioner status, a unilateral notion. Membership presupposes an application for admission, which may be informal, the carrying out of voluntary activity according to one's means, and payment of a contribution whose amount and method are not fixed by the statutes. The interpretation of the statutes follows the principle of trust, or the objective meaning for large companies.
As regards evidence, judicial convocation is a non-contentious measure, which falls under summary proceedings (art. 248 let. e CPC) and the simple inquisitorial maxim (art. 255 let. b CPC). The parties must nevertheless themselves provide the facts and evidence; art. 8 CC remains relevant for the allocation of the burden of proof. There is no reversal of the burden of proof where the judge, by assessing the evidence, regards a fact as established.
In this case, the Parish recognised twenty-two members among the signatories. Twenty certificates from signatories, confirmed by a member of the Parish Council, the body keeping the register of members, allowed the cantonal judge to regard the membership status of at least thirty-two signatories as established, that is, more than one-fifth of the 157 members admitted by the Parish. The Parish could not confine itself to passively disputing these allegations when a redacted extract of the register was feasible; the refusal to produce it does not constitute a reversal of the burden of proof…