Book Effects Act
|Title:||Federal law on book effects of October 3, 2008|
|Short title:||Book Effects Act|
|Legal matter:||Commercial law|
|Issued on:||October 3, 2008 (SR 957.1 ; PDF; 523 kB)|
|Entry into force on:||January 1, 2010|
|Please note the note on the applicable legal version.|
The Swiss federal law on book effects (Bucheffektengesetz, BEG) regulates the safekeeping of securities and value rights by custodians and their transfer. In terms of its aim, it largely corresponds to the German and Austrian Depot Act and in some cases contains verbatim transfers of offsetting in the case of recovery from the Directive on Financial Collateral ( 2002/47 / EG (PDF) ).
Dematerialization of securities
One of the main changes to the Book Effects Act is the addition of Art. 973a to 973c in the Swiss Code of Obligations (OR) . Art. 973a to 973c OR for the first time explicitly permit the holder to waive the issue of physical securities. There is therefore an increasing dematerialization of the security. Specifically, Art. 973a OR enables the issuer to collectively hold all issued securities instead of issuing them to the holders. Art. 973b OR goes further and allows the issuer to issue a global certificate instead of individual securities, provided the security holder agrees or the articles of association or the issuing conditions provide for this.
Finally, Art. 973c OR enables the creation of value rights instead of physical securities or the subsequent conversion of such into value rights. A value right within the meaning of the law can therefore be defined as (completely) dematerialized security. The prerequisite for the creation of stock rights is either the authorization to do so in the company's articles of association or the issuing regulations or the consent of the security holder. The issuing company is obliged to keep a book of value rights. This must list the number and denomination of the stock rights issued and the creditors and is not public. However, a conventional register of shareholders does not count as a book of value rights. Ultimately, the stock rights arise when they are entered in the book of values and only exist in accordance with this entry.
Book effects within the meaning of Art. 3 of the Book Effects Act " are justifiable claims or membership rights vis-à-vis the issuer "
- which are credited to a securities account; and
- which the account holders (= holders of the security) can dispose of in accordance with the provisions of this Act.
Book securities must therefore always have an underlying asset, which can be either book-entry securities, securities held in collective custody or global certificates.
According to the law (Art. 6 BEG), book securities arise in the following two-stage process:
- Deposit of securities or global certificates with a custodian or entry of value rights in the main register of a custodian and
- These rights are credited to the account holder's securities account (= holder of the security).
In addition to individual exceptions, only banks within the meaning of the Banking Act and securities dealers within the meaning of the Stock Exchange Act can be considered as custodians (Art. 4 BEG).
The issuer of existing book-entry securities, securities held in collective custody or global certificates can also convert these into book effects at his own expense if neither the terms of issue nor the company's articles of association conflict with the conversion (Art. 7 BEG).
Book effects are assets that are not items within the meaning of Art 713 ZGB or documents within the meaning of Art 965 OR . However, the book effects have the functional property of a security . The book effects are legally validly ordered (mediated custody) by crediting (posting) an investor's securities account by the approved custodian ( financial intermediary ).
In the Swiss Criminal Code , criminal provisions have been inserted with regard to the exploitation of knowledge of confidential facts, which also specifically refer to the book effects.
The German Deposit Act, on the other hand, contains not only the extensive provisions on the safekeeping of securities in the depository but also criminal provisions in the Deposit Act itself, and parts of the provisions of the Deposit Act are therefore part of ancillary criminal law . The Austrian custody account law has no penal provisions of its own (any more). Some of these criminal provisions can be found in the Austrian Criminal Code .
Synopsis of the German-Austria-Switzerland Securities Custody Acts
- Swiss Book Effects Act (PDF; 523 kB)
- Deposit Act Germany
- Depot Act Austria
- Financial Collateral Directive 2002/47 / EC (PDF)
- ↑ Federal Act on Book Effects (Bucheffektengesetz, BEG) of October 3, 2008, SR 957.1
- ↑ Art 1 para. 1 BEG
- ↑ Law on the safekeeping and acquisition of securities (Depotgesetz - DepotG) of February 4, 1937, DRGBl I p. 171 - New announcement in the version of January 11, 1995, dBGBl I p. 34)
- ↑ Federal Act of October 22, 1969 on the Safekeeping and Acquisition of Securities (Deposit Act), ÖBGBl 424/1969
- ↑ DIRECTIVE 2002/47 / EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 June 2002 on financial collateral, OJ L 168/43. At the international level, see the Hague Convention of July 5, 2006 (Hague Securities Convention - HWpÜ. This agreement was adopted by the Hague Conference on Private International Law at the 19th diplomatic session on December 13, 2002. Switzerland and the USA approved the HWpÜ on Signed July 5, 2006, but the necessary ratifications by three countries for the agreement to come into force are missing (  status ratifications).
- ↑ in Directive 2002/47 / EG this term is not used, but rather "securities transferable in securities"
- ↑ Art 3 para. 1 BEG
- ↑ Page no longer available , search in web archives: Communication from the Federal Department of Finance on the Book Effects Act and the Hague Securities Convention
- ↑ z. B. Clearstream , SIX SIS AG (formerly SegaInterSettle AG. In addition, supervised and regulated banks, fund management companies, securities dealers who keep the accounts of shareholders (investors) can be custodians for the book securities they issue.) - see list of global central securities depositories (CSDs) .
- ↑ Mediatized safekeeping is understood to mean the - not necessarily physical - safekeeping of securities by investors with financial intermediaries. With this type of custody, a security is not necessarily required for asserting ownership, debiting or transferring, since the - electronic - booking on the investor's account is considered sufficient.
- ↑ See e.g. B. Art 161 StGB (Switzerland)
- ↑ See e.g. B. Art 237 StGB (Austria) - only for bearer papers and criminal provisions in ancillary criminal law with regard to insider dealing.