Fields of law Corporate lawRevision of Corporate Law per 01.01.2023

Revision of Corporate Law per 01.01.2023

The revision of corporate law as of 01.01.2023 applies to listed as well as unlisted companies The focus here is on non-listed SMEs.

Share capital

  • The provisions on non-cash acquisitions after incorporation and share capital increases have been abolished.
  • The nominal value of a share may be less than 1 Rappen (Art. 622 para. 4 CO).
  • The share capital can be held in a foreign currency if this currency is common for the company (permissible are: GBP, EUR, USD, YEN; Art. 45 u. Appendix 3 HRegV).
    • The currency change is possible at the beginning of a year, an amendment of the articles of association and a resolution of the general meeting are necessary (Art. 621 para. 3 CO).
    • At the time of incorporation, the foreign currency must be equivalent to at least CHF 100,000 (or at least CHF 50,000 if not fully paid up) (Art. 621 para. 2 CO)
    • Participation certificates must be in the same currency as the share capital (Art. 656a para. 1 CO).
  • The instrument of the capital band was newly created
    • Capital increases and reductions of up to 50% are possible during a period of 5 years
    • The changes must be reflected in the Articles of Incorporation
    • The BoD is responsible, the BoD resolutions must be publicly certified.
    • A capital band is also possible for participation certificates (Art. 656 Para. 4 No. 4 CO)
  • Capital reduction
    • The capital reduction only needs to be published once in the SOGC (Art. 653k para. 1 CO).
    • In the case of opting out, a capital reduction is not possible (Art. 653s para. 4 CO).
    • In case of capital reduction and simultaneous increase (harmonica) in foreign currency, the share capital must again correspond to at least CHF 100,000 (Art. 653j para. 3 CO).

Dividends and distributions

  • Interim dividends from current profit are possible (Art. 675a CO)
    • Interim financial statements required, simplifications possible (Art. 960f CO)
    • Interim financial statements must be approved by AGM (Art. 698 para. 2 no. 5 CO)
    • Interim financial statements must be audited by the auditors. No audit required in case of opting-out or waiver by all shareholders, provided that the claims of creditors are not jeopardized (Art. 675a para. 2 CO)
  • The legal capital reserve (premium etc.) may be repaid to the shareholders if the legal capital and profit reserves, less the amount of any losses, exceed half (20% in the case of holding companies) of the share capital entered in the commercial register (Art. 671 para. 2 CO, Art. 671 para. 3 CO)
  • Claim for restitution by the company in the event of unjustified distributions to the board of directors, management or advisory board (Art. 678 CO); limitation period 3 years (Art. 678a CO)

Shareholder and minority rights

  • 10% of the share capital or voting rights are sufficient to demand information from the BoD, response within 4 months.
  • 5% of the share capital or voting rights are sufficient to demand inspection of business books and correspondence without authorization from the AGM.
  • 5% of the share capital or voting rights are sufficient to demand that items be included on the agenda for the AGM and that an extraordinary AGM be called.

Digital technologies

  • General meetings can be held by video conference (Art. 701d ff. CO).
  • Basis in articles of incorporation required.
  • Digital board meeting possible (Art. 713 para. 2 CO)

Actions by shareholders

  • The AGM may decide that the company must file an action for restitution (Art. 678 para. 5 CO) or an action for responsibility (Art. 756 para. 2 CO) against a corporate body (Art. 678 para. 5 CO)
  • The limitation period is 3 years

Liquidity and overindebtedness

  • The liquidity of the company is the focus of attention.
  • The board of directors must monitor liquidity on an ongoing basis and take measures if there is a justified concern of insolvency.
  • If there is a reasonable prospect of eliminating overindebtedness within a reasonable period of time, there is no obligation to deposit the balance sheet with the judge. The claims of creditors may not be additionally jeopardized.

Articles of Association and Organizational Regulations

Existing articles of incorporation and organizational regulations must be adapted in order to take advantage of the flexibility offered by the revised Stock Corporation Act.

Interim regulations

  • In principle, the revised provisions apply immediately.
  • There is a transitional period of two years for individual topics, e.g.: Provisions of the Articles of Association and regulations that conflict with the new law remain in force until 01.01.2025 at the latest.
  • Capital increases already approved before 01.01.2023 and capital increases from conditional capital remain subject to the previous law. However, the resolutions of the AGM can no longer be amended or extended.
  • etc.

Accounting, balance sheet, income statement, taxes

  • Share capital in foreign currency
    • Accounting and financial statements to be prepared in the foreign currency (Art. 621 para. 2 CO)
    • Profit tax: Average rate of sale to be converted into CHF for (Art. 31 para. 3bis StHG, Art. 80 para. 1bis DBG)
    • Capital tax: exchange rate at the end of the business year is decisive (Art. 31 Abs. 5 StHG)
  • Balance sheet
    • To be included under equity (Art. 959a para. 2 item 3 OR) are:
      • voluntary retained earnings
      • own capital shares as minus items
      • profit or loss carried forward as a minus item
      • annual profit or annual loss as a minus item
    • Revaluation reserves are to be listed separately under legal retained earnings (Art. 725c para. 1 CO)
    • The reserve for own shares in the group must be listed separately under the legal profit reserve (Art. 659b para. 2 CO)
    • Information must be provided in the notes to the annual financial statements on:
      • Shares held by controlled companies (Art. 959c para. 2 cif. 4 CO)
      • The reasons for premature resignation or dismissal of the auditors (Art. 959c para. 2 cif. 14)
      • Capital increases and reductions in a capital band (Art. 959c para. 2 cif. 15)
  • Offsetting of losses
    • Requirements for the order of offsetting (Art. 674 CO):
      • with retained earnings brought forward
      • with voluntary retained earnings
      • with the legal profit reserve
      • with the legal capital reserve
    • Instead of offsetting against the legal profit reserve or the legal capital reserve, the loss may be carried forward to the new account (Art. 674 para. 2 CO)with the legal profit reserve

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