Henry Peter / Francesca Birchler, Les groupes de sociétés sont des sociétés simples, in: SZW 3/1998, p. 113 et seqq.
Henry Peter, Francesca Birchler – Les groupes de sociétés sont des sociétés simples
Background
Prof. Dr. Henry Peter and Francesca Birchler wrote this text and produced it as an opinion dispute with Prof. Dr. Roland von Büren regarding the question if a group of companies can be defined as an unregistered partnership pursuant to Swiss Law. Prof. Dr. Henry Peter and Francesca Birchler think that a group of companies can also be considered an unregistered partnership, because there is a common purpose between the single companies within a group of companies.
Prof. Dr. Roland von Büren answered to this opinion with the text “Warum der Konzern keine einfache Gesellschaft ist – eine Replik, SZW 5/1998, p. 213 ff.” He on the other hand says that there is no ground to define the group of companies as an unregistered partnership, because a common purpose can not be found. According to the author, his view was followed by the Swiss Federal Court in the leading case Musikvertrieb AG v. Motor-Columbus AG (BGE 124 III 297; see also the unpublished version of the judgment 4C.472/1997 from 16. April 1998, consideration 4a). The Swiss Federal Court set high standards to the characteristics of the common purpose in an unregistered partnership. Even a “common market presence” of a group of companies does not justify the establishment of an unregistered partnership.
In 2009 Prof. Dr. Henry Peter and Francesca Birchler reply in “Les groupes de sociétés sont (parfois) des sociétés simples – une duplique, in: Peter V. Kunz/Dorothea Herren/Thomas Cottier/René Matteotti, Festschrift für Roland von Büren, Basel 2009, p. 131 et seqq.” to von Büren in the form of a replica and defending their opinion. In this context see also the summary Nr. 43.
Summary
Under Swiss company law, groups of companies are still considered as a set of separate legal entities, despite the trend towards consolidation that is observable in the banking and accounting area.
This leads to unsatisfactory and sometimes even troublesome results, especially in cases of insolvency within the group. According to the authors, a group of companies can be considered an unregistered partnership (Art. 530 Code of Obligations).
This permits creative developments of the groups which are jointly and severally liable with respect to creditors of any member of the group.
Specifically, they consider it necessary to equalize the legal and the economic approach. The group of companies is a poly-corporate structure and should be considered as an unregistered partnership:
“We believe that the group of companies achieves all the conditions of existence of unregistered partnership within the meaning of Articles 530 CO […] This qualification allows to give legal consequences to that fact now ubiquitous that is the group to which it has so far not managed to give legal effect satisfactory, with the exception of abuse or more less obvious.” p. 124
The idea of the authors has again been picked up by the current doctrine. See: Peter V. Kunz, Grundlagen zum Konzernrecht der Schweiz, Bern 2016.