After new provisions such as the gender quota and the transparency rules in the commodities sector have already found their way into the law as of 1 January 2021, the entire innovations in company law will come into force as of 1 January 2023.
The most important changes brought about by the revised company law are as follows:
1. More flexible capital rules
- Nominal share values below CHF 0.01 per share possible
- Share capital can now be held in a foreign currency, whereby the equivalent value of CHF 100,000.00 must be given
- Introduction of the capital band: the capital band replaces the authorised capital increase in the form of a statutory instrument, which authorises the Board of Directors for a maximum period of five years to increase or decrease the share capital within a certain range
2. Greater flexibility (modernisation) in the conduct of the AGM and in the passing of BoD resolutions
- Participation in AGMs can take place electronically and AGMs can be held entirely electronically as virtual AGMs
- AGM can be held by circular in future
- Holding of the AGM of a Swiss AG abroad possible (with corresponding provision in the articles of association and designation of an independent proxy)
3. Empowerment of (minority) shareholders
- In non-listed companies, shareholders who together represent at least 10% of the share capital or votes may also request information about the company's affairs from the board of directors outside the general meeting of shareholders
- Shareholders who together represent at least 5% of the share capital or the votes may inspect the books and records at any time
- The quorum for convening an extraordinary general meeting of a public company is reduced to 5% of the share capital or the votes. For non-listed companies, the quorum remains 10%
- The right to add items to the agenda is reduced to 0.5% of the share capital or votes in the case of publicly traded companies and to 5% in the case of unlisted companies
4. Adjustments and innovations concerning impending insolvency, capital loss and overindebtedness
5. Transfer of the Vegüv into the OR
- An updated concept of AG is legiferated in Art. 620 nOR
- The limitation period for liability actions is reduced from five to three years
- The articles of association may provide for an arbitration clause for all disputes under company law (Art. 697n nOR). This can be introduced by the AGM at any time with a qualified majority
- Possibility of paying interim dividends
- The (intended) acquisition of assets no longer constitutes a qualifying event in the case of formation or capital increase
- The clearing liberalisation is newly regulated by law and must be disclosed in the articles of association
Need for action by the companies
In practice, there is sometimes a need to adopt amendments to the articles of association with regard to the new revision of company law at this point in time - primarily so that the provisions of the revised company law can already be used at the general meeting in 2023. From the point of view of the prohibition of anticipation of future law, caution is called for here.
Against this background, the Swiss Federal Commercial Registry Office ("EHRA") has already published the practice notice on amendments to the articles of association with regard to the revision of the company law on 17 January 2022.
Accordingly, it is possible to adopt amendments to the articles of association that are not subject to the publication requirement at a general meeting in 2022. This includes, for example, provisions on the holding of a virtual AGM. Although these amendments to the articles of association will not have the necessary legal basis until the new company law comes into force, they can be adopted "in time". It is possible to register the amendment to the articles of association, but it must be clearly stated in the articles of association that the new provisions of the articles of association will only apply when the new company law comes into force.
All other amendments to the articles of association (subject to publication) in connection with the revision of the company law may already be adopted, but may only be registered with the commercial register once the revised company law enters into force. These amendments to the articles of association must be approved by the AGM under the condition precedent that the share law enters into force.
There is no obligation to amend the articles of association prematurely - a period of two years applies for the amendment of provisions of the articles of association that do not comply with the new company law.