Facts
Legal framework
Considerations
Comment


In a March 29 2011 decision(1) the Supreme Court had the opportunity to comment on the inspection rights of a creditor of a stock corporation according to Article 697h(2) of the Code of Obligations.

Facts

Two companies concluded a framework agreement on exclusive distribution rights for medical products in various countries. A dispute arose about the minimum order quantity stipulated in the framework agreement, which had subsequently been revised several times. The respondent argued that the claimant had breached its minimum purchase obligation and initiated debt enforcement proceedings against the claimant in the amount of Sfr1.26 million. Furthermore, the respondent requested disclosure of the claimant's annual accounts and auditor's report, in order to obtain information about its financial situation and to assess the chances of successfully enforcing the claim. The appellate court approved this request. The Supreme Court confirmed this decision and dismissed the appeal filed by the stock corporation, which requested that the appellate court's decision be reversed and the request for inspection dismissed.

Legal framework

According to Article 697h(1) of the Code of Obligations, the annual accounts and the consolidated accounts – after having been approved by the general meeting of shareholders – are either published in the Official Gazette of Commerce or made available to any person who requests a copy within one year of such approval if the company has outstanding bonds or its shares are listed on a stock exchange. The inspection rights of shareholders and creditors of listed companies are wide.

In contrast, non-listed companies have no general duty to disclose their financial accounts. However, they must allow creditors (including employees) that demonstrate an interest warranting protection to inspect the annual accounts, consolidated accounts and audit reports. According to Article 697h(2) of the code, in cases of doubt it is up to the court to decide whether such an interest exists. A creditor enjoys this right of inspection for one year following approval of the annual accounts. Until now, the court and the doctrine assumed a narrow interpretation of a creditor's legitimate interest for inspection purposes.(2)

Considerations

The Supreme Court heard an appeal filed by the respondent of the initial proceedings, which were filed by the creditor to request disclosure of:

  • the annual accounts of the other party to the framework agreement for the 2009 business year; and
  • the auditor's report for 2009.

The Supreme Court had to decide whether the creditor's interest deserved protection.

The court stressed that it is not sufficient for a claimant merely to prove its position as a creditor of the company against which the request for inspection is directed. The creditor must also demonstrate its interest warranting protection.

Decisions about the right of inspection are issued in summary proceedings. Therefore, the prerequisites according to Article 697h(2) need not be demonstrated strictly; rather, the case is proved only if the prerequisites are demonstrated in all probability. It is insufficient if they appear to be merely believable.

Regarding the interest for inspection, the facts of each case must be verified individually in detail; no general rules exist. The court will consider the circumstances in order to decide whether there is an interest that justifies the insight into otherwise confidential information. A general interest based on the mere fact that the applicant is a creditor of the company is insufficient. The applicant must rather provide concrete reasons to justify inspection of the annual accounts.

According to the Supreme Court, the interest of a creditor in obtaining information about a competitor's financial situation does not merit protection. On the other hand, an interest warranting protection may be acknowledged if a monetary claim appears to be at risk or if there are indications of financial difficulties of the company in question. As such, an interest warranting protection is acknowledged if the creditor's doubts about the liquidity of the company – based on concrete signs – are deemed to be justified, and if such doubts can be eliminated only by the disclosure of the annual accounts of the respective company.

When assessing the existence of a legitimate interest under Article 697h(2) of the code, the Supreme Court ruled that no overly strict standards should be applied. The court confirmed that a legitimate interest exists, in particular, upon the filing of legal proceedings for monetary claims, unless such proceedings appear frivolous. The Supreme Court stated that the request for inspection is aimed directly at determining the financial circumstances of the debtor and allows the creditor to assess and evaluate the risk involved. The creditor may have a legitimate interest in reviewing the solvency of the debtor before undertaking any further legal steps which could prove costly. Nevertheless, the prerequisites must be verified in each case. The Supreme Court followed this doctrine and ruled that a legitimate interest may not be approved if, for instance, only a minor monetary claim is in dispute. Also, no legitimate interest exists if the sole purpose of the proceedings is to obtain access to the debtor's business documents.

In the case at hand, the Supreme Court affirmed a legitimate interest of the creditor to appraise the chances of enforcing its monetary claim. The amount at stake was taken into consideration, insofar as the creditor's claim (being more than Sfr1 million) could not be regarded as insignificant. The Supreme Court also held that the appeal court had validly established that the repeated amendment of the payment procedures was most likely motivated by liquidity problems of the debtor. In view of these liquidity problems, which the applicant had demonstrated in all probability, the Supreme Court confirmed an interest of the creditor warranting protection to inspect the annual accounts of the debtor.

Comment

A creditor which requires access to the annual accounts and auditor's report of a stock corporation must prove both its position as a creditor and a legitimate interest. The Supreme Court has reconfirmed the existing practice in both doctrine and jurisdiction, and took the opportunity to specify in more detail the criteria to find an interest warranting protection pursuant to Article 697h(2) of the Code of Obligations. Further to this clarification by the Supreme Court, it may be assumed that the right of disclosure against a debtor might in future become more important in assessing the cost risk of proceedings.

For further information on this topic please contact Markus Dörig or Alexandra Bösch at BADERTSCHER Rechtsanwälte AG by telephone (+41 44 266 20 66), fax (+41 1 266 20 70) or email ([email protected] and [email protected]).

Endnotes

(1) 4A_69/2011.

(2) BGE 4C.129/2004.