The Right to Information

To exercise the rights associated with their status, shareholders are entitled to receive information about the company’s activities and to review certain documents, including: the terms of contracts; deposits and withdrawals made to and from the company’s accounts and their purpose; directors’ compensation; compliance with legal and tax obligations; and the calculation and use of profits.

When the Board of Directors fails to fulfill this duty, shareholders have a legal remedy to assert their rights and protect their interests: special audit.

What is a special audit?

This specific procedure involves appointing an external auditor responsible for answering certain questions from shareholders. The investigator must be independent; therefore, the company’s auditor may not serve in this capacity. The investigator is most often a certified public accountant with no ties to the company or an attorney. The Federal Supreme Court has clarified the investigator’s purpose (ATF 4A_631/2020 of June 15, 2021).

How can it be implemented?

The General Meeting may approve a proposal for a special audit and submit a request to the court, which will appoint the auditor (Art. 697a, para. 2, CO).

If the General Meeting does not act on the matter, shareholders representing at least 10 percent of the share capital, or shares with a par value of 2 million francs, may, within three months, petition the court to appoint a special auditor (Art. 697b, para. 1, CO). They must demonstrate a legitimate interest and establish a prima facie case that the corporate bodies or the founders have violated the law or the articles of incorporation to the detriment of the company or the shareholders.

Probable cause is sufficient, but it must not pave the way for “fishing expeditions” conducted without serious prior grounds for suspicion: the judge must carefully weigh the competing interests.

Why use it?

The Special Auditor’s report serves as an expert opinion and may be used in other legal proceedings, such as an action for liability (Art. 754 CO) or an action for restitution (Art. 678 CO). It protects shareholders in the exercise of their rights—particularly their property rights—with respect to the company.