Group law (Switzerland)
The consolidated laws of Switzerland covers the legal regulations and court decisions that the companies have as their object, ie the combination of entities into an economic unit headed by a dominant company.
Concept and regulation
Although corporations are widespread in the Swiss economy as in other countries, they are handled differently by legislation than e.g. B. in Germany not or only sporadically recorded and regulated as such. Group law has therefore primarily developed in court practice and is relatively confusing. Depending on the field of law and the question, a group can mean something different. In any case, a group requires the following: the connection of at least two legally independent companies through a single management. The company that exercises the group management is called the parent company, the other companies subsidiary or subsidiary companies.
Corporations are specifically regulated in Art. 963, Paragraph 2 of the Code of Obligations (OR) with regard to accounting, whereby the law allows the mere possibility of controlling other companies to be sufficient as a prerequisite for the obligation to prepare consolidated accounts. This control principle also applies in financial market law, e.g. B. for the regulation of banking or insurance groups. With regard to the audit obligation, according to Art. 728 para. 6 OR, actual uniform management is required. This management principle also applies to antitrust law. Group law standards with different group definitions can also be found in public law (data protection law, CO 2 law, postal law, media law, tax law). The pending corporate responsibility initiative aims to oblige Swiss companies around the world to comply with certain human rights and environmental protection standards .
organization
Legal nature
The group as such has no legal personality ; the individual group companies alone have this at their disposal. The group is therefore not legally competent and z. B. not taxable. This means that there are no contractual partners or shareholders of the group, only of the individual group companies. It is controversial (but rejected by the prevailing Swiss doctrine) whether the group is a simple company among its companies, which would have a major impact on liability issues. The group is legally i. d. Usually not treated as a whole, but each group company individually; only selectively (e.g. within the framework of the legal provisions mentioned above) does the law tie in with the group as a whole. The question often arises whether the knowledge of one group company can be attributed to the other; The teaching affirms this only selectively, e.g. B. in the case of influence by the group management or personal interrelationships.
A distinction must first be made between contract groups , the connection of which results from a contract (possibly also from a simple company ), and the much more common investment groups , the connection of which results from the fact that the parent company controls the subsidiary companies by holding its shares. A group connection can also result from a de facto personal union of the corporate bodies or from the articles of association. The concept of subgroups with their own management and autonomy within a group is controversial, but largely rejected by teaching .
In principle, every type of company is suitable for a group. However, due to legal restrictions, z. B. Associations, SICAVs and limited partnerships for collective investments. Only manageable types of company are suitable as sub-companies, e.g. B. hardly any clubs. In Switzerland the AG group predominates, but there are also GmbH and cooperative groups (e.g. Migros and Coop ).
Organizational structure
One possible (but not the only) organizational structure of a group is the holding structure . The divisions form their own subsidiaries, and the holding company above holds its shares and deals with the central issues. The holding structure can be v. a. have tax advantages. The holding company can exercise group management itself or delegate it to a “management company” within the group.
In Swiss corporate practice, “vertical integration” is the rule, according to which the parent company delegates persons to the bodies of the subsidiary companies, where they perform the same or similar functions. Such double organizations are permitted. “Horizontal integration”, in which all sub-companies have an identical board of directors and / or an identical management team, is less common. However, this can lead to special legal challenges, for example with regard to conflicts of interest and liability risks.
Conflicts of Interest
Board members and executives of subsidiary companies are legally obliged to safeguard the interests of the subsidiary company, even if they are appointed by the parent company and should therefore act in its interests. In the event of conflicts of interest, this can lead to tensions, which in practice are often resolved by insurance or contractual clauses to relieve the burden on those affected, so that the interests of the parent company prevail as a result.
management
The task of the group management with the associated authority to issue instructions to the subsidiaries does not have to be formally anchored (e.g. in the articles of association, in regulations). It can also be exercised as a purely factual position of power.
liability
The group or the parent company is not automatically liable for the debts of the individual group companies. However, corporate liability can arise:
- through a factual group company: If a parent or management company performs management functions for a group company, it is its factual body and thus triggers its own liability.
- Out of corporate trust: the mother or the corporate group is jointly liable if it indicates that it “stands behind the contract” that a subsidiary concludes.
literature
- Jean Nicolas Druey, Eva Druey Just, Lukas Glanzmann: Corporate and Commercial Law, Schulthess 2015
- Peter Forstmoser : Horizontal integration in the group , in: Schweizer et al. (Ed.), Festschrift for Jean Nicolas Druey on his 65th birthday, Zurich 2002, p. 383 ff.
- Peter V. Kunz: Basics of corporate law in Switzerland, Stämpfli 2016
Individual evidence
- ↑ Kunz, margin no. 88 ff.
- ↑ Druey et al., Rz. 102 ff.
- ↑ Kunz, margin no. 19th
- ↑ Kunz, margin no. 21, 118
- ↑ Kunz, margin no. 157 ff.
- ↑ Kunz, margin no. 25 ff.
- ↑ Kunz, margin no. 32
- ↑ Kunz, margin no. 31
- ↑ Kunz, margin no. 32
- ↑ Kunz, margin no. 62 f.
- ↑ Kunz, margin no. 192
- ↑ Kunz, margin no. 300
- ↑ Kunz, margin no. 193 ff.
- ↑ Kunz, margin no. 240 ff., For examples of the overall consideration, margin no. 246 f.
- ↑ Kunz, margin no. 248 ff.
- ↑ Kunz, margin no. 95 ff.
- ↑ Kunz, margin no. 166 ff.
- ↑ Kunz, margin no. 206 ff.
- ↑ Kunz, margin no. 217 ff.
- ↑ Kunz, margin no. 224 ff., 231
- ↑ Druey et al., Rz. 93
- ↑ Kunz, margin no. 177
- ↑ Kunz, margin no. 180
- ↑ Kunz, margin no. 288, with Hw. on BGE 4A_522 / 2011
- ↑ Kunz. Margin no. 138; in detail Forstmoser
- ↑ Kunz, margin no. 284 fmHw. on BGE 130 III 21
- ↑ Kunz, margin no. 286
- ↑ Druey et al., Rz. 124 f.
- ↑ Druey et al., Rz. 133 ff.