Corporate Law (Switzerland)

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Swiss company law is the area of law that deals with the legal aspects of associations of persons in Switzerland . The legal definition of the company is provided by Art. 530 OR : Society is the contractual connection of two or more people to achieve a common purpose with common forces or means.

history

On January 1, 1883, the Swiss Code of Obligations (OR) came into force - for the first time there is company law regulated throughout Switzerland.

On January 1, 1912, the Swiss Civil Code (ZGB) and the only new version of the Code of Obligations came into force. The law of persons in the Civil Code brings significant innovations.

The Banking Act, which came into force on March 1, 1934, provides rules that are independent of the legal form for the industry in question.

The original Swiss antitrust law of 1985 created a competition authority and was intended to prevent cartels .

The "major reform of stock corporation law" of 1992 significantly tightened stock corporation law. Among other things, the minimum capital was doubled to CHF 100,000, which led to a significant increase in the popularity of the GmbH - a legal form that was largely unused in Switzerland.

On February 1, 1996, the new antitrust law came into force, which expanded the competences of the competition commission and abolished the so-called balance method.

The Stock Exchange Act, which came into force on February 1, 1997, introduced additional regulations for stock corporations listed on the stock exchange. In particular, the reporting requirement for participations, the public purchase offer by law and the squeeze-out were regulated.

The Merger Act, which came into force on July 1, 2003, governed the transformation, merger and division of companies in detail for the first time.

On January 1, 2007, the Collective Investment Schemes Act came into force, which created two new legal forms for the sole purpose of collective investment schemes. On September 1 of the same year, the Audit Oversight Act came into force, which should bring uniform standards for the audit of companies.

On January 1, 2008, the “minor revision of company law” was carried out. The innovations include the admissibility of one-person stock corporations (previously at least three), the abolition of compulsory shares for members of the board of directors, the relaxation of the residence requirements for members of the board of directors and the obligation to run a company that indicates the type of company. At the same time, a comprehensive revision of the GmbH law came into force. As a central point, the duty to perform a regular audit no longer depends on the legal form, but on exceeding at least two of the following values: 10 million francs total assets, 20 million francs sales, 50 full-time positions. Further new regulations include the abolition of the maximum share capital of CHF 2 million, the possibility of one person setting up a GmbH (previously at least two), the obligation to fully pay up the shares (previously at least 50%) and the corresponding abolition of unlimited liability for shares that are not fully paid up , Extension of company protection to the whole of Switzerland, reduction of the minimum value of a share from 1000 to 100 francs, facilitation of the transfer of shares, inadmissibility of participation certificates, extension of the duty of loyalty and the prohibition of competition as well as the facilitation of resignation and exclusion of an individual partner.

On October 1, 2009, in part and then in full on January 1, 2010, the Book Effects Act came into force, which for the first time explicitly permitted and regulated the issuance of dematerialized shares and trading in book effects.

On March 1, 2012, the most recent significant change to Swiss company law came into force with the too-big-to-fail bill. In view of the sometimes very low capital resources of various financial institutions, the raising of equity should be made easier under company law through the creation of the instruments of reserve capital and the Coco bonds and favored under tax law through the exemption from the issue tax.

A comprehensive revision of company law is currently in progress. A first part, the completely revised accounting law, which has now been fully decoupled from the legal form of the company, will definitely come into force on January 1, 2013. A second part, the indirect counter-proposal to the rip-off initiative, will come into force if the initiative were rejected by the people. The provisions of this part are intended to provide stricter rules for determining the remuneration of members of the Executive Board and the Board of Directors and for exercising voting rights by representatives. Finally, the third part, which is supposed to adapt the general provisions of the working group, is still being debated in parliament and no time can be foreseen for it to come into force.

Legal sources

Swiss company law is not centrally regulated, but has grown over a century. The most important decrees are:

The third section of the Code of Obligations, where all trading companies are regulated, is by far the most important source of law. In addition, there is the simple company already regulated in the second division and the association regulated in the personal law of the Civil Code. In addition to these basic rules of the respective company forms, there are also certain legal bases applicable in company law and a large number of special rules. The first category includes the general rules of personal law in the Civil Code and general contract law in the OR, some of which are applicable. The special rules in the OR include the rules on securities in particular for stock corporations and the provisions on the commercial register for all economically active companies. Finally, the federal law on merger, division, transformation and asset transfer regulates every form of company restructuring, while the antitrust law regulates cooperation between companies. The Banking, Stock Exchange and Collective Investment Schemes Act finally provide specific rules for the financial sector, which in particular also include separate company forms for collective investment schemes and special capital increase options for banks. For all companies that are subject to an audit obligation, the Auditor Oversight Act is of importance. In addition, only listed companies have to observe the Book Securities Act and the regulations of the Swiss Exchange. Finally, a large number of ordinances must be observed, which almost all laws give more detail.

Legal forms

Swiss company law has eight classic legal forms , which are divided into partnerships, also known as legal communities, and corporations. There is also a numerus clausus, which means that - in contrast to contract law - only the explicitly regulated company forms may be used.

  • Partnerships / legal communities
    • Simple society (Art. 530 ff. OR): Society of two or more people to achieve a common goal with common strengths and means. In principle, running a commercial company is not permitted. The provisions of simple companies also apply to all other partnerships, where nothing specific is specified for them.
    • General partnership (Art. 552 ff. OR): Society of two or more natural persons for the management of a commercial company. The partners have unlimited and joint liability.
    • Limited partnership (Art. 594 ff. OR): Basically identical to the general partnership, but two types of partners: the general partner with unlimited liability and joint and several liability and the limited partner with limited liability.
  • Corporations
    • Corporations
      • Joint stock company (Art. 620 ff. OR): The stock corporation is a company with its own company, the capital (share capital) of which is divided into partial sums (shares) and for whose liabilities only the company's assets are liable. The AG usually runs a commercial company and is the most common legal form for companies in Switzerland, as in contrast to other countries, many SMEs are organized as an AG.
      • Limited partnership (Art. 764 ff. OR): The limited partnership is a cross between a stock corporation and a limited partnership. The legal form actually intended for companies has proven to be stillborn and is practically not used.
      • Limited liability company (Art. 772 ff. OR): The GmbH is a corporation, but has a large number of personalistic elements. After a long niche existence, it has enjoyed increasing importance in the recent past. In 1990 there were around 2,000 GmbHs, while today there are just under 120,000.
    • Cooperative (Art. 828 ff. OR): Cooperatives mostly aim at promoting or securing certain economic interests through mutual self-help. The principle of the open door applies, which means that neither the share capital nor the number of members is limited and can be expanded at any time. The cooperative is of particular importance due to the two largest retailers, Coop and Migros , as well as the third largest bank in Switzerland, Raiffeisen Switzerland .
    • Association (Art. 60 ff. ZGB): The association is dedicated to a non-economic purpose, which can be, for example, political, religious, scientific or artistic in nature. However, the statutory provision that the purpose is not to be economic does not exclude the association from operating a business run in a commercial manner, provided that it serves the non-economic purpose of the association. Since a revision of the law, there is basically no longer any personal liability for association members.

The institutions , in particular the foundation and the institution under public law , are, like the corporations, legal persons , but are not part of the companies. In addition to the eight classic legal forms mentioned, the Collective Investment Schemes Act of January 1, 2007 also created so-called companies for collective investment :

  • Limited partnership for collective capital investments (Art. 98 ff. CISA): An independent legal form based on a limited partnership for the exclusive purpose of collective capital investments. It is a so-called closed collective investment scheme.
  • Investment company with variable capital (Art. 36 ff. KAG): An independent legal form based on a stock corporation for the sole purpose of collective investment. It is a so-called open collective investment scheme.
  • Investment company with fixed capital (Art. 110 ff. KAG): A special form of stock corporation that is not a separate legal form for the sole purpose of collective investment. It is a so-called closed collective investment scheme.

meaning

The development of the various legal forms.

By far the most important legal form in the Swiss economy is the stock corporation. With currently around 187,000 companies, it is even more important than the sole proprietorship with around 150,000 companies registered in the commercial register. The GmbH ranks second among the companies. For a long time this was of very little importance in Switzerland, as many SMEs were organized as an AG. Since the stock corporation law reform of 1992, which among other things resulted in a doubling of the minimum capital of an AG, the popularity of the GmbH is clearly on the rise. With almost 10,000 new GmbH added every year, it is by far the fastest growing legal form. On the other hand, companies with personal liability - the general and limited partnership - and the cooperative are struggling with falling numbers. The clubs show modest growth, with an increase from 5900 to 6600 in four years. The other companies are not listed in the table - the limited partnership and the companies for collective investment. Of all these legal forms combined, there are only 300, so they are currently largely insignificant.

See also

Individual evidence

  1. ↑ http://www.chblaw.ch/upload/071109BeilagekleineAktienrechtsrevision.pdf  ( 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.@1@ 2Template: Toter Link / www.chblaw.ch  
  2. ↑ http://www.convisa.ch/informationen/publi/Aktienrecht0108.pdf  ( 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.@1@ 2Template: Dead Link / www.convisa.ch  
  3. ↑ Archive link ( Memento of the original from October 21, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.chblaw.ch
  4. ↑ http://www.kpmg.ch/docs/20060428_Totalrevision_des_GmbH_Rechts.pdf
  5. ↑ http://st-galler-juristenverein.ch/archiv/gmbh.pdf

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