In such cases of organizational deficiencies, the commercial register office must first set a deadline for the company to rectify the deficiency in accordance with Art. 939 CO. If the deadline is not met and the deficiency persists, the office forwards the case to the court to take the necessary measures.
In such cases, the court has the following options:
- Setting a new deadline for restoring the legal status (rectification of the defect)
- Independent appointment of the missing organ
- Dissolution of the company and liquidation in accordance with the provisions applicable to bankruptcy
The dissolution of the company is the last possible resort and may only be pronounced by the courts if less drastic measures are unsuccessful. This applies, for example, in cases where decisions cannot be delivered or the commercial register office has already set the company concerned several deadlines to remedy the deficiency.
In a case before the Cantonal Court of the Canton of Vaud on June 28, 2023 (KGer VD HC/2023/398), the auditors were dissolved without a replacement being appointed. Despite numerous reminders from the commercial register office, the company did not remedy the lack of governing bodies. The lower court therefore dissolved the company and ordered its liquidation by the bankruptcy office. The company filed an appeal against this decision with the cantonal court.
There was no need for the cantonal court to set a new deadline because the commercial register office had already set the company several deadlines to rectify the deficiency. However, the company claimed that the judicial appointment of the missing auditors had been wrongly excluded as a possibility by the lower court.
As the dissolution was to be the last possible decision, the court agreed with the company, overturned the decision of the lower court and referred the matter back to the lower court for the appointment of an auditor by the judge.