Swiss Federal Supreme Court confirms that shareholders have no right to decide upon, or challenge court-approved asset sales during a moratorium under Art. 298(2) Debt Enforcement and Bank-ruptcy Act (DEBA)

In a previous decision BGE 147 III 226 (discussed in our previous bulletin), the Federal Supreme Court established that creditors have no standing to challenge a court-authorized asset sale under Art 298(2) DEBA and no right to be heard in such proceedings. In its recently published decision 5A_53/2026 dated May 4, 2026, the Federal Supreme Court has now extended this reasoning to shareholders, thereby further strengthening legal certainty in Swiss (pre-pack) restructurings.

A. Facts and Decision

In the case concerned, «B. GmbH», a Swiss limited liability company, had applied for a provisional composition moratorium in January 2025. The competent court granted a silent (non-published) provisional moratorium and appointed an administrator (Sachwalter).

Based on the administrator’s reports – which documented a dramatic deterioration of the company’s liquidity, rapidly depreciating inventory, worsening purchasing conditions, and a lack of realistic continuation prospects – the court authorized B. GmbH under Art. 298(2) DEBA to sell parts of its assets to two purchaser companies by way of two asset purchase agreements. The administrator indicated that a Nachlassvertrag mit Vermögensabtretung with a 100% creditor dividend and preservation of all jobs was achievable.

A., a non-signing minority shareholder holding 48% of the company’s shares (Stammanteile), challenged the authorization order, arguing that:

• the order was null and void due to serious procedural and substantive defects;
• no valid shareholder resolution approving the sale had been adopted (as allegedly required under Art. 808b Swiss Code of Obligations (CO)); and
• his constitutional rights (Art. 9, 29(2) Federal Constitution; Art. 6(1) ECHR) had been violated.

The Cantonal Court of Basel-Landschaft declined to enter into the complaints for lack of standing. The Federal Supreme Court dismissed A.’s appeal and confirmed the cantonal decision.

B. Main Considerations of the Federal Supreme Court

• No standing for shareholders. Extending the principles of BGE 147 III 226, the Court held that shareholders – like creditors – are mere «third parties» (Dritte) in the authorization proceedings under Art. 298(2) DEBA. Their purely economic exposure (e.g., potential impact on a liquidation dividend) does not constitute a legally protected interest sufficient for standing under Art. 59(2)(a) Civil Procedure Code.
• No shareholder approval required. Once insolvency proceedings are opened, the insolvency regime under DEBA takes precedence over corporate law. The management and the administrator may conduct the moratorium and pursue asset sales – including a sale of the entire business – without a shareholder resolution. Art. 808b CO (shareholder approval rights for «important decisions») does not apply.
• No hearing or participation rights. Art. 298(1) and (2) DEBA provides no hearing or participation rights for creditors or other third parties, including shareholders. There is no obligation for the court to verify the existence of a prior shareholder resolution.
• No nullity. The Court confirmed that the authorization order was not null and void. Nullity requires a particularly serious and obvious defect. The court had relied on the administrator’s detailed reports and examined the circumstances, including the alleged proximity between the buyers and the managing director. No obvious grave defect was recognizable; allegations of «systematic deception» of the court actually underscore that any defect would be hidden, not obvious – which negates the standard for nullity.
• No constitutional violation. There was no unlawful expropriation of shareholder rights. Shareholders remain protected through liability claims against the company’s directors (Art. 827 CO) and the administrator (Art. 5 DEBA) in the event of a prejudicial transaction.

C. Assessment and Outlook

The decision is restructuring-friendly and provides further legal certainty for pre-pack transactions and asset sales during a moratorium. Key takeaways include:

• Insolvency law trumps corporate law. During a composition moratorium, management and the administrator control the process without shareholder involvement, even for fundamental transactions such as a business sale.
• Broad protection for buyers. Since neither creditors nor shareholders can challenge an authorization order once granted, buyers can rely on court-approved (pre-pack) transactions with a high degree of certainty.
• The interests of shareholders continue to be safeguarded by the availability of liability claims. While shareholders have no standing in the authorization proceedings, the Federal Supreme Court emphasized that potential liability of the directors (under corporate law) and the administrator (under DEBA) remains reserved. The administrator and management are therefore well-advised to diligently document and reason any sale to withstand potential subsequent liability claims.
• Applicability to stock corporations. Although the decision concerned a GmbH, its reasoning – based on the primacy of the insolvency regime over corporate law and the creditor-focused structure of the moratorium – is equally applicable to corporations (Aktiengesellschaften).

The decision further solidifies Switzerland’s position as a jurisdiction for restructurings and pre-pack transactions.