News in the field of corporate law


On 1 January 2023, various innovations in the field of company law will come into force in Switzerland, therefore applicable to the Anonymous Company (SA) and consequently also to the Limited Guarantee Companies (Sagl).

The first change concerns the currency in which the share capital can be expressed: no longer only in Swiss Francs, but also in Euros (EUR), American Dollars (USD), Pounds Sterling (GBP) and Yen. This possibility is open not only to newly incorporated companies but also to existing ones, by means of a retrospective or prospective adjustment at the beginning of an accounting period.

A further novelty is represented by the introduction of the “capital variation margin” (“Kapitalband”), i.e. the possibility of anchoring in the Articles of Association the concession to the Board of Directors of freedom of action to carry out capital increases or decreases within a pre-established margin not exceeding 50% of the pre-existing capital (both increasing -150%- and decreasing -50%-) and within an equally pre-established term of a maximum of 5 years.

The new law also provides for procedural changes to the provisions concerning the ordinary increase of the share capital, its ordinary reduction and finally the increase through conditional capital. The minimum nominal amount per single share has been abolished, an amount which may therefore be lower than the current minimum of 1 cent, provided that this value is greater than zero.

On the subject of contributions in kind and release of capital through offsetting the new law introduces new features, essentially adapting the current practice by streamlining its implementation.

In terms of distributions to shareholders, the new law introduces two substantial innovations: the first is determined by the possibility of distributing interim dividends, i.e. dividends deriving from an ongoing and therefore not yet concluded financial year. The second novelty concerns the distribution of the legal reserve from capital coming from different types of contributions and in particular from the premium (premium on the issue of new shares): in line with a 2014 ruling, the new law explicitly establishes the legitimacy and respectively the conditions of implementation, making a distinction between operating companies and holding companies.

In addition to the changes mentioned above and which concern the structure of the share capital and the management of its variability over time, there are some changes to note regarding the (strengthened) rights of shareholders and the functioning of the General Meeting of shareholders. If it is true that starting from 1 January 2023 it will no longer be possible to conduct meetings in circular form or respectively not in presence only as waived by the COVID-19 provisions, the new company law which will enter into force on the same date will allow to adapt the Articles of Association and provide for other forms of holding Assemblies (therefore no longer necessarily in presence and in a single place, paving the way for holding Assemblies also abroad and respectively with the use of electronic media).

Last but not least, the new company law introduces increased obligations for the Board of Directors in situations of financial difficulty. In particular, we note the explicit obligation regarding constant supervision of solvency and therefore the right to keep faith with current payables. In addition to this, the existing obligations deriving from the recognition of a capital loss remain, with further obligations such as the need for the Board of Directors to have an auditor verify the annual accounts that show a capital loss even where the company has waived a limited audit ( “opting out”), with the only exception being the launch of an application for a moratorium on composition with creditors. As regards instead the case of excess debts, the new law introduces a term of 90 days from the date of preparation of an interim balance sheet (verified) which suspends the obligation to notify the judge if there are well-founded possibilities restructuring, respectively the elimination of excess debts without prejudice to the interests of creditors.

IN CONCLUSION: the new law brings innovations that modernize company law to the practice and respectively to the expectations of the economic world. The innovations affecting both the shareholders and the Board of Directors therefore require an active approach, aimed at seizing opportunities and awareness of the new rights and responsibilities introduced, in particular by reviewing the relevance of the statutes, organizational regulations and shareholders’ agreements . The new law will enter into force on 01.01.2023, where it is possible to proceed immediately with statutory changes (but providing for their entry into force from 01.01.2023), where the transitional law provides that the Statutes that do not comply with the new law must be updated within two years.

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