The stock corporation ( AG for short ) ( French Société Anonyme ( SA ); Italian Società anonima ; Rhaeto-Romanic Societad anonima ) is a legal form of a corporation under Swiss company law . The legal basis for the stock corporation is dealt with in the Code of Obligations in Articles 620 to 763. The number of stock corporations continues to grow - as of January 1, 2019 there were 218,026 AGs in Switzerland. Joint stock companies based on public law are named as special-law stock corporations . To a large extent, these correspond to the private-law stock corporation.
To found an AG you need a share capital of at least CHF 100,000 ( Code of Obligations Art 621), whereby at least 20% or in any case at least CHF 50,000 in the form of cash or contributions in kind (qualified formation) must be available immediately ( Code of Obligations Art 632). The missing part of the share capital must be accounted for as 'unpaid share capital', although this is only possible for registered shares. Bearer shares must be fully paid up (= paid in).
The name of the company (referred to as the company ) must be unique in Switzerland ( Code of Obligations Art 951). The legal form (AG) must be specified in the company ( Code of Obligations Art 950). The Federal Commercial Register Office (EHRA) defines the company's detailed requirements and checks them when they are entered in the commercial register.
The establishment takes place through the creation of a public deed in which the statutes , the individual contribution values and the organs at the time of foundation are recorded ( Code of Obligations Art 629). An AG is only considered to have been created when it is entered in the commercial register - previously it existed as a simple partnership with its liability conditions.
The legal provisions for the establishment are regulated in the Code of Obligations Art 629 to 635.
When founding a stock corporation, the cost of issuing the deed and the articles of association is around CHF 1,000, depending on the complexity and effort of the notary. For the entry in the commercial register, fees according to the ordinance on fees for the commercial register (SR 221.411.1) of around CHF 850.00 are due.
The organs of the AG are the general assembly (abk. GV), the board of directors (abk. VR) and the auditors . Unlike, for example, in Germany ( board of directors ), the management or management in Switzerland is not a body of the company. On the other hand, other (optional) bodies can be appointed voluntarily, e.g. B. a board of directors.
The general assembly (GV) is the highest body of the stock corporation and consists of all shareholders . The AGM can:
- change the statutes
- Elect the board of directors and auditors
- Approve the annual report and consolidated financial statements with the discharge of the Board of Directors
- on the use of the annual profit and fixing the dividend determine
- make further resolutions that are reserved by law or the statutes of the General Assembly
The statutory provisions for the GM are regulated in OR 698-706. A special feature of Swiss company law is z. B. the restriction of the transferability of voting rights to registered shareholders and the life partner.
The right to vote at the AGM is measured without otherwise statutory regulation on the ratio of the nominal value of the individual shareholder / of each shareholder owned shares. In larger companies, it is usually distributed very unevenly among the individual shareholders - depending on the amount of the respective capital share (see major shareholder ). According to the law, however, the Articles of Association could always “limit the number of votes for owners of several shares”.
Board of Directors
The Board of Directors (BoD) consists of one or more members.
According to Article 716a OR, the board of directors of an AG has non-transferable tasks. The most important are supervision (overall supervision), strategies (management of the organization), systems (definition of the organizational form, accounting etc.) and personnel (appointment and dismissal of the management).
The statutory provisions on the VR are regulated in OR 707-726.
The auditors check whether the bookkeeping , the annual accounts and the proposal to the AGM for the appropriation of the annual profit comply with the law and the articles of association. By law, she has full access to all business documents. She draws up a report based on her findings, which is then presented to the General Assembly.
The statutory provisions on auditors can be found in OR 727-731a.
Deficiencies in the organization of society
If the company lacks one of the prescribed organs or if one of these organs is not properly composed, a shareholder, a creditor or the commercial register manager can request the judge to take the necessary measures (Art. 731b para. 1 OR). The court can, for example, set a deadline for the company under threat of dissolution within which the lawful state of organization or the composition of the organs is to be restored (Art. 731b para. 1 item 1 OR). If necessary, the court can appoint the missing body or an administrator (Art. 731b para. 1 no. 2 OR) or dissolve the company and order its liquidation in accordance with the bankruptcy regulations. In practice, meeting the residence requirement in accordance with Art. 718 Paragraph 4 OR seems to be the greatest difficulty. According to this standard, a company must have at least one director or board of directors who is authorized to sign individually and resides in Switzerland. If this is not the case, this represents a lack of organization.
With a revision of stock corporation law in 1992, the position of small and minority shareholders was strengthened. Everyone now has an explicit right to request information about company matters at the General Meeting or even to request a special audit . If the GV rejects the latter, a total of min. 10 percent of the share capital or, alternatively , a nominal value of CHF 2 million, request the competent court to order an independent special audit.
Until the end of 2007, the Code of Obligations required at least three shareholders to set up an AG. If the number of shareholders subsequently fell below three, the judge could dissolve an AG at the request of a shareholder or creditor. This determination of the resolution remained a dead letter. In practice, there were a large number of so-called one-person AGs in Switzerland.
Since January 1, 2008, the establishment of a one-person AG is expressly permitted.
- Peter Böckli : Swiss company law . 4th edition, Verlag Schulthess, Zurich, 2009; ISBN 3-7255-5846-9 .
- Peter Forstmoser, Arthur Meier-Hayoz , Peter Nobel : Swiss company law . Verlag Stämpfli, Bern, 1996; ISBN 3-7272-0889-9 .
- Arthur Meier-Hayoz ;, Peter Forstmoser: Swiss company law . 11th edition, Verlag Stämpfli, Bern, 2012, in particular § 16; ISBN 978-3-7272-8680-3 .
- Robert Meier: The stock corporation . Schulthess publishing house, Zurich, 2005; ISBN 3-7255-5013-1 .
- Registered companies per legal form and canton. Federal Office for the Commercial Register.
- Federal Office of Justice: Instructions and instructions to the cantonal commercial register authorities regarding the checking of companies and names from January 1, 1998 ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.
- A detailed discussion of the organizational deficiencies and the elimination of these can be found in Lukas Müller / Pascal Müller, Organizational Defects in Practice - Selected Aspects of Art. 731b OR from the point of view of the commercial register and the case law, Current legal practice 25 (2016) 42-58.
- Lukas Müller / Pascal Müller, Organizational Defects in Practice - Selected Aspects of Art. 731b OR from the perspective of the commercial register and case law, current legal practice 25 (2016) 44-46.