I. Significance and requirements for registration

1 The newly founded company limited by shares only acquires legal personality when it is entered in the commercial register (Art. 643 para. 1 CO; Art. 52 para. 1 CC). The entry therefore has a constitutive effect. At the same time, the entry has a "curative" effect: the company can acquire legal personality without all the requirements for registration having been met (Art. 643 para. 2 CO).

2 Shares issued before entry in the commercial register are null and void (Art. 644 para. 1 CO). If legal transactions are concluded in the name of the company prior to registration, the parties acting are personally and jointly liable (Art. 645 para. 1 CO). This liability does not apply if the company assumes the obligations within three months of registration (Art. 645 para. 2 CO).

3 The entry is made in the commercial register at the formal registered office of the company (Art. 640 CO), while the public notarization of the act of incorporation (Art. 629 para. 1 CO) can also be carried out elsewhere.

4 In most cases, registration is based on an application (application principle; Art. 929 para. 2 sentence 1 CO). The facts to be registered must be substantiated (substantiation principle; Art. 929 para. 2 sentence 2 CO). The evidence listed in Art. 43 CRO is used to document and substantiate the facts relevant to the formation of a company limited by shares. The catalog of Art. 43 para. 1 CRO is generally considered to be exhaustive. Depending on the circumstances, however, additional evidence may be required. The supporting documents must be submitted in the original or as a certified copy (Art. 20 para. 1 CRO).

5 The registration is made by the founders or the Board of Directors. It must be signed by authorized signatories of the company or by a third party authorized by the Board of Directors (see Art. 17 para. 3 CRO) (Art. 18 para. 1 in conjunction with Art. 17 para. 1 CRO). The signatures of the registering and authorized signatories must be certified (see N. 28). The supporting documents must also be signed in accordance with the law (Art. 20 para. 2 CRO).

6 Instead of on paper, the application may be submitted in electronic form (see Art. 16 para. 3 in conjunction with Art. 12b and 12c CRO) (Art. 16 para. 2 CRO).

7 The application must be drafted in an official language of the competent canton (Art. 16 para. 4 CRO). The Commercial Register Office may request a translation for foreign-language documents (Art. 20 para. 4 CRO).

8 The law does not stipulate a specific deadline for the registration, calculated from the date of incorporation. However, delays of more than 3-6 months should be avoided. Otherwise, certain documents may no longer be accepted.

9 Upon receipt of the application, the cantonal commercial register office must check whether the requirements for registration have been met, in particular whether the application and supporting documents have the prescribed content and do not violate mandatory provisions (Art. 937 CO). If the application or supporting documents are incomplete or deficient, the application will be rejected by the Commercial Register Office or rejected for rectification.

10 The entry in the daily register is then reviewed by the Federal Commercial Register Office (Art. 32 para. 1 CRO). After approval, the entry is published in the Swiss Official Gazette of Commerce (Art. 35 para. 1 CRO). The entry becomes effective upon publication (Art. 936a para. 1 sentence 2 CO; see Art. 936b CO for the effects).

II. Necessary supporting documents (para. 1)

11 The supporting documents discussed below must be submitted to the competent commercial register office together with the application for registration of the newly formed company limited by shares. They are enclosures to the application.

A. Public deed (para. 1 lit. a)

12 Art. 629 para. 1 CO stipulates that the formation of a company limited by shares takes place by means of a declaration by the founders in a public deed. The content of the public deed of incorporation is set out in Art. 629 para. 2 CO and Art. 44 CRO.

B. Articles of association (para. 1 lit. b)

13 The determination of the articles of association is a central component of the formation and must be reflected in the public deed (see Art. 629 para. 1 and Art. 631 para. 2 no. 1 CO). The legally prescribed content of the articles of association is set out in Art. 626 CO. If the shares are to be listed on a stock exchange, additional provisions must be included in the articles of association (cf. Art. 626 para. 2 CO). The description of the purpose in the articles of association is decisive for the corresponding entry in the commercial register (Art. 118 para. 2 CRO).

14 The date of the first version of the articles of association is based on the date of adoption by the founders (Art. 22 para. 1 lit. a CRO).

15 From a formal point of view, the submitted articles of association must be certified by the notary (Art. 22 para. 4 lit. a no. 1 CRO).

C. Declarations of acceptance of elections (para. 1 lit. c and d)

16 In addition to the determination of the articles of association, the appointment of the necessary bodies is another key point of the formation (see Art. 629 para. 1 CO). The focus is on the members of the Board of Directors. The law does not stipulate a minimum number (cf. Art. 707 para. 1 CO).

17 Proof must be provided to the Commercial Register Office that the members of the Board of Directors have accepted their election in advance or subsequently (para. 1 lit. c). If the acceptance of the election is not directly declared verbally and documented in the public deed, a written confirmation must be submitted to the Commercial Register Office. Alternatively, it is sufficient if the registration lists the members of the Board of Directors and the relevant member of the Board of Directors (co-)signs the registration.

18 As is the case for the members of the Board of Directors, proof must also be provided for the statutory auditors that they have accepted their election (para. 1 lit. d). Whether an ordinary or limited audit is required is determined by Art. 727 et seq. CO. A voluntarily appointed auditor may only be registered if it carries out a legally compliant limited or ordinary audit (Art. 61 para. 1 CRO).

19 The declaration of acceptance of the election of the auditors is not required as evidence if the shareholders of a company with no more than ten full-time employees on an annual average unanimously waive the limited audit ("opting out", Art. 727a para. 2 CO), the articles of association do not prescribe an audit and the company does not opt for an audit regardless of the waiver. Such a waiver is mentioned in the public deed of incorporation (Art. 44 lit. f CRO).

20 In order to waive the limited audit, a declaration must be included in the deed of incorporation (see Art. 62 para. 3 CRO) or a separate form ("SME declaration") signed by at least one member of the board of directors (Art. 62 para. 2 sentence 1 CRO) must be submitted to the commercial register office stating that (a) the company does not meet the requirements for an ordinary audit (Art. 727 para. 1 CO), (b) the company does not have more than ten full-time employees on an annual average (Art. 727a para. 2 CO) and (c) all shareholders waive a limited audit (Art. 62 para. 1 CRO). When registering a new company limited by shares, the waiver declarations of the founders, which are often already included in the deed of incorporation, are sufficient evidence (see Art. 62 para. 2 sentence 2 CRO). Art. 62 para. 4 CRO authorizes the commercial register office to request a renewal of the waiver at a later date, in particular if there are indications that the requirements for the waiver are no longer met.

21 If the articles of association stipulate additional bodies, additional declarations of acceptance may have to be submitted.

22 No declarations of acceptance are required for managing directors, authorized signatories or other authorized signatories.

D. Constituent resolution (para. 1 lit. e)

23 The required supporting documents also include the minutes of the Board of Directors on its constitution, the regulation of the chairmanship and the granting of signing powers. Instead of minutes or an extract from the minutes signed by the secretary and the chairperson (Art. 713 para. 3 CO), a circular resolution signed by all members of the Board of Directors may be submitted (Art. 23 para. 2 CRO; for electronic resolution, see Art. 713 para. 2 no. 2 and 3 CO). Alternatively, the application may be signed by all members of the Board of Directors (Art. 23 para. 3 sentence 1 CRO). Scanned signatures are not sufficient.

24 The Chairwoman of the Board of Directors is appointed by the Board of Directors, unless the Articles of Association declare the General Meeting to be responsible (Art. 712 para. 2 CO) or the shares are listed on the stock exchange (Art. 712 para. 1 CO). The appointment of a Chairwoman is essential for public limited companies with more than one member of the Board of Directors. Two co-chairwomen are also possible.

25 Other conceivable functions include, for example, a vice-chairwoman and a secretary as well as members of the management or directors (see Art. 716b para. 1 CO).

26 In the case of persons authorized to represent the company, the type of signing authority must be determined in each case. For the registration of authorized signatories (see Art. 721 CO), please refer to Art. 458 para. 2 CO. In the absence of a special provision, each member of the Board of Directors is authorized to represent the company individually (Art. 718 para. 1 sentence 2 CO). At least one member of the Board of Directors must always be authorized to sign individually or two members must be authorized to sign collectively (Art. 718 para. 3 CO).

27 One person authorized to sign individually or two persons authorized to sign collectively must be resident in Switzerland (Art. 718 para. 4 CO). Contrary to the wording of the law, in practice a regular signing authority without a special executive function is sufficient, but not a mere procuration or power of attorney.

28 Certified specimen signatures must be deposited by the notifying persons - with the exception of an authorized third party - and all persons authorized to sign (see Art. 18 para. 2 CRO). The certification can also be made directly at the Commercial Register Office (see Art. 21 para. 1 lit. a and para. 2 CRO) or, under certain conditions, as part of the public notarization (see Art. 24a para. 2 and Art. 24b CRO). Certifications by foreign authorities require a Hague apostille in accordance with the relevant convention or superlegalization by the local Swiss diplomatic or consular representation (see Art. 25 para. 1 CRO). Special international treaty provisions remain reserved.

29 In addition, the persons to be registered must submit copies of identity documents to the Commercial Register Office to verify their identity (see Art. 24a para. 1 CRO). These do not constitute supporting documents, are kept with the correspondence files that are not open to public inspection and may be destroyed after registration (see Art. 10 lit. c and Art. 24a para. 3 CRO). Any academic titles of registered persons must also be documented (Art. 119 para. 1 lit. f CRO).

E. Confirmation of payment (para. 1 lit. f)

30 The law stipulates that the deposits made in the context of the formation for the settlement of the issue amount must be deposited in cash with a bank (Art. 633 para. 1 CO; for the minimum deposit, see Art. 632 CO). The bank's confirmation of such cash deposits (certificate of deposit) must be submitted to the notary at the time of incorporation (see Art. 631 para. 1 and para. 2 no. 4 CO).

31 If the bank is not mentioned in the certificate of incorporation, the confirmation must be submitted to the commercial register office so that it is clear at which bank the deposits are deposited. It is sufficient if the nominal value has been paid into the blocked account. The payment of any premium is not checked by the Commercial Register Office.

F. Declaration of domicile (para. 1 lit. g)

32 If the company does not have "its own offices" at its legal domicile (Art. 2 lit. b CRO), but merely a c/o address, a declaration by the domicile holder (domicile provider) is required as proof that the latter grants the company a legal domicile at the place of its registered office (i.e. in the political municipality, Art. 117 para. 1 CRO) (Art. 117 para. 3 CRO). The declaration can also be integrated into the public deed if the domicile holder participates in the act of establishment.

33 The address of the legal domicile must - in addition to the name of the domicile holder ("c/o") - include the street and house number (Art. 117 para. 2 sentence 1 CRO). A P.O. Box may at most be entered as an "additional address" (Art. 117 para. 5 CRO).

34 In principle, the Board of Directors is responsible for determining the legal domicile - in contrast to the statutory registered office (see Art. 626 para. 1 no. 1 and Art. 704 para. 1 no. 13 CO). The granting of domicile is based on a contract with the domicile holder, which does not have to be submitted to the commercial register office as evidence.

35 The domicile holder's declaration is not required if the company has its own address at the stated domicile, namely due to ownership, rent or subletting. The certificate of incorporation or registration may contain a corresponding indication. If it is doubtful whether the company actually has its own premises, the Commercial Register Office may request appropriate evidence (see Art. 117 para. 4 CRO).

G. Confirmation for bearer shares (para. 1 lit. i)

36 In contrast to the shareholders of a GmbH, the shareholders are not mentioned in the commercial register, and unlike in the case of a cooperative (see Art. 837 and Art. 877 para. 1 CO), a publicly accessible list of shareholders is not filed with the commercial register office (see Art. 84 para. 1 lit. h and Art. 88 CRO).

37 However, the limited admissibility of bearer shares has led to a new document: If the company issues bearer shares, it must prove to the commercial register office and have it entered in the commercial register that it has listed equity securities on a stock exchange or that all bearer shares are structured as intermediated securities (cf. Art. 622 para. 1bis and 2bis CO). Proof from the stock exchange or bank must therefore be submitted to the Commercial Register Office.

III. Details of the instrument of incorporation (para. 2)

38 According to para. 2, no additional document is required for information that is already recorded in the public deed of incorporation. Art. 44 CRO regulates what must be included in the public deed of constitution.

39 However, this does not apply to the omission of supporting documents pursuant to para. 1, which also served as enclosures to the public deed (cf. Art. 631 para. 2 CO). The same applies to para. 3. If the document refers to a submitted declaration of acceptance of election, for example, this must nevertheless be submitted (para. 1 lit. c).

40 On the other hand, documents in the public deed that are not listed in Art. 43 CRO, such as powers of attorney for the founding meeting or proof of existence for foreign legal entities, do not need to be submitted to the commercial register office. A separate confirmation is therefore unnecessary if the member of the board of directors present at the formation declares his acceptance of the election and this fact is recorded in the public deed.

IV. Qualified formations (para. 3)

41 If there are contributions in kind, offsetting facts or special benefits, additional supporting documents are required, which are listed in para. 3. The corresponding documents are also enclosures to the deed of formation and must therefore already be submitted to the notary (see Art. 631 para. 1 and para. 2 no. 2, 3 and 5 CO).

42 For payment by offsetting against a claim (Art. 634a and 120 CO), no special evidence of the existence, maturity or offsettability of the claim is required. However, the facts must be disclosed in the articles of association (cf. Art. 634a para. 3 CO).

43 Similarly, if special benefits are granted in favor of the founders or other persons, no additional evidence is required apart from the formation report and the audit confirmation. Again, the articles of association must create the desired transparency (see Art. 636 CO).

44 Since the 2020 revision of company law, "certain" and merely "intended" acquisitions in kind (Art. 628 para. 2 CO) no longer have to be disclosed. Therefore, "the non-cash acquisition agreements with the required enclosures" (para. 3 lit. b) are no longer required as supporting documents as of January 1, 2023.

A. Contribution in kind agreement (para. 3 lit. a)

45 As stipulated in Art. 634 para. 2 sentence 1 CO, contributions in kind (Art. 634 para. 1 CO) must be agreed in writing unless the transfer of the object - as in the case of real estate - requires public notarization. The contribution in kind agreements must be submitted to the commercial register office with the required enclosures and are thus publicly accessible. Ancillary agreements can be recorded separately so that submission to the commercial register office is not necessary.

46 An inventory list or a takeover balance sheet can be considered as enclosures to the non-cash contribution agreement.

47 In addition, the articles of association must state the object and its valuation (total value), the name of the contributor as well as the shares issued in return and other consideration paid by the company (see n. 48) (Art. 634 para. 4 sentence 1 CO).

48 The requirements for contributions in kind also apply if the value of the contribution in kind to be credited exceeds the issue amount owed and the difference is credited as a claim of the depositor against the company (see Art. 45 para. 3 aHRegV; under the previous law referred to as "mixed contribution in kind/acquisition in kind"). The additional consideration of the company ("contribution in kind with further consideration") is subject by law to publicity in the articles of association (Art. 634 para. 4 sentence 1 CO), but not in the commercial register (cf. Art. 45 para. 2 lit. a CRO).

B. Formation report (para. 3 lit. c)

49 A further document required for qualified formations is the formation report signed by all founders. It can also be signed by the authorized representatives of the founders. The content of the formation report is set out in Art. 635 CO.

C. Audit confirmation (para. 3 lit. d)

50 A licensed auditor must audit the formation report and confirm without reservation that it is complete and correct (Art. 635a CO).

51 The audit confirmation of the state-regulated audit firm, the licensed audit expert or the licensed auditor must also be submitted to the Commercial Register Office as evidence.

V. Further supporting documents

52 The commercial register offices provide special forms for clarifying the licensing requirement in accordance with the Licensing Act ("Lex Koller" or formerly "Lex Friedrich"). Depending on cantonal practice, the form must be submitted at least if the company pursues a main real estate activity (acquisition of or trade in real estate) in accordance with its statutory purpose or de facto. The wording of the law is linked to the actual purpose of acquiring real estate (Art. 4 para. 1 lit. e ANRA; Art. 1 para. 1 lit. a BewV). In this way, participation in the formation of a company limited by shares can be regarded as an acquisition of real estate requiring a permit. The form must be signed by the founders or the registering persons.

53 In connection with the Lex Koller declaration, it may be necessary to obtain approval from the cantonal authorities or confirmation from them that no authorization is required (declaratory ruling). If the commercial register office is unable to exclude the authorization requirement without further ado, it sets a deadline of 30 days for the company or the registering persons to obtain authorization or to determine that no authorization is required (Art. 18 para. 1 and 2 ANRA). Exceptionally, a confirmation must also be submitted to the Commercial Register Office for other reasons that the registration or business activity does not require a license.

54 If the newly founded company carries out an activity that requires a license, the license to commence business activities must often be obtained prior to entry in the commercial register (see Art. 3 para. 1 BankG; Art. 4 para. 4 FinMIA; Art. 5 para. 2 FinIA; Art. 13 para. 5 CISA; also Art. 128 CRO). The license received or a concise certificate from the licensing authority must generally be submitted to the Commercial Register Office as proof. The simplification proposed in connection with the bill to combat abusive bankruptcy, according to which authorizations that can be viewed in a publicly accessible directory of a local authority (such as FINMA) would no longer have to be proven (Art. 24c VE-CRO), has not been implemented. In some cases, the license must be obtained at a later date and the extract from the commercial register forms part of the documentation for the license application (see Art. 7 para. 2 lit. a KVAG for the health insurance sector).

55 A separate "stampa declaration" by the founders stating that "there are no contributions in kind, acquisitions in kind, offsetting items or special benefits other than those stated in the supporting documents" (para. 1 lit. h in the version up to the end of 2020) is no longer required since this confirmation is already included in the act of incorporation (cf. Art. 629 para. 2 no. 4 CO; Art. 44 lit. g CRO).

Bibliography

Huber Helen, Grundlagen der Finanzmarktaufsicht, FINMA-Bewilligungen und Eintragung im Handelsregister, REPRAX 4/2023, S. 211–229.

Meisterhans Clemens/Gwelessiani Michael, Praxiskommentar zur Handelsregisterverordnung, 4. Aufl., Zürich/Basel/Genf 2021.

Siffert Rino/Turin Nicholas (Hrsg.), Handelsregisterverordnung (HRegV), Stämpflis Handkommentar, Bern 2013 (zit. SHK-Autor/Autorin).

Vogel Alexander, HRegV Kommentar, Orell Füssli Kommentar, 2. Aufl., Zürich 2023.

Zihler Florian/Krähenbühl Samuel, Zeichnungsberechtigungen und Funktionen in der handelsregisterrechtlichen Praxis, Status quo und Vorschlag zur Entschlackung, REPRAX 3/2010, S. 53–90.

Materials

Eidgenössisches Amt für das Handelsregister, Praxismitteilung 2/15 vom 30.11.2015 (zit. «Praxismitteilung EHRA 2/15»).

Eidgenössisches Amt für das Handelsregister, Fragen im Zusammenhang mit dem Inkrafttreten des neuen Aktienrechts, Praxismitteilung 3/22 vom 19.12.2022 (zit. «Praxismitteilung EHRA 3/22»).

Eidgenössisches Amt für das Handelsregister, Erwerb von Grundstücken durch Personen im Ausland; Richtlinien für die kantonalen Handelsregisterämter vom 13.1.1998 (zit. «Richtlinie EHRA Lex Koller»).