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- Art. 3 FC
- Art. 5a FC
- Art. 6 FC
- Art. 13 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123a FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 97 CO
- Art. 98 CO
- Art. 99 CO
- Art. 100 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 73 PRA
- Art. 73a PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 3 AMLA
- Art. 7a AMLA
- Art. 8 AMLA
- Art. 8a AMLA
- Art. 14 AMLA
- Art. 15 AMLA
- Art. 20 AMLA
- Art. 23 AMLA
- Art. 24 AMLA
- Art. 24a AMLA
- Art. 25 AMLA
- Art. 26 AMLA
- Art. 26a AMLA
- Art. 27 AMLA
- Art. 28 AMLA
- Art. 29 AMLA
- Art. 29b AMLA
- Art. 30 AMLA
- Art. 31 AMLA
- Art. 31a AMLA
- Art. 32 AMLA
- Art. 38 AMLA
FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
I. General
1 In order to form a company limited by shares, the founders must, in accordance with Art. 629 para. 1 CO, "declare in a public deed that they are forming a company limited by shares, lay down the articles of association and appoint the corporate bodies". The law also requires that the deed of formation includes the subscription of the shares and certain statements (Art. 629 para. 2 and 3 CO). Art. 631 CO is devoted to the enclosures to the deed of formation.
2 The public deed of incorporation (certificate of incorporation) is also of central importance for the entry of the newly formed company in the commercial register, as it serves as an important and reliable source of information. Against this background, Art. 44 CRO sets out the minimum content of the deed of incorporation from the perspective of commercial register law (cf. Art. 943 CO) and accepts overlaps with the requirements of the Code of Obligations.
3 It goes without saying that the notary must comply with all requirements under the law of obligations and the formalities of the applicable cantonal notarial law (Art. 55 para. 1 SchlT CC) irrespective of Art. 44 CRO.
4 The public notarization of the act of incorporation need not be carried out in the canton in which the company has its registered office, but may also be carried out by another notary in Switzerland - in an official cantonal language of the competent commercial register office (see Art. 20 para. 4 CRO).
5 Pursuant to Art. 43 para. 1 lit. a CRO, the public deed of incorporation must be submitted to the commercial register office as evidence with the application for registration of the incorporation. This allows the cantonal commercial register office to check whether the requirements set out in Art. 44 CRO have been met (see Art. 937 CO).
II. Mandatory information
A. Personal details of the founders and representatives (lit. a)
6 The public deed must begin by stating the personal details of the founders and any authorized representatives (lit. a). The information should - at least together with the other documents available to the notary or the commercial register office - allow the persons involved to be clearly identified (see Art. 119 and 24a CRO), even though the founders are not to be entered in the commercial register. The identification of the parties involved can be important, for example, with regard to founding liability (Art. 753 CO).
7 In view of the public nature of the commercial register documents (see Art. 11 para. 1 lit. b CRO), the transparency sought under commercial register law and any requirements under notarial law are in tension with personal and data protection concerns. Exact domicile details (instead of just the place of residence) or the exact date of birth (instead of the year of birth) should not have to be disclosed.
8 Art. 928c para. 1 CO requires the commercial register authorities to systematically use the AHV insurance number to identify natural persons. The cantonal commercial register offices have access to the central database of persons to be operated by the Federal Office for the Commercial Register. For reasons of confidentiality, the natural persons recorded in this database are assigned a non-pronouncing personal number (Art. 928c para. 3 CO). The AHV insurance number is not public (Art. 936 para. 1 sentence 3 CO).
9 One or more natural or legal persons or commercial companies are eligible as founders (Art. 620 para. 1 sentence 1 CO), including general partnerships and limited partnerships, but not simple partnerships. It is not necessary for the founders to be present in person.
10 If representatives are appointed, the powers of attorney must be presented to the notary. They are often attached to the deed of incorporation. However, they do not constitute proof of registration with the commercial register office. In view of any subsequent notarization actions that may be necessary in the event of objections by the commercial register authorities, corresponding authorizations for adjustments on behalf of the founders are often integrated into the deed of formation.
B. Declaration of formation (lit. b)
11 Central to the formation of the company is the unanimous and unconditional declaration of the founders to form a company limited by shares (lit. b). By signing the deed (lit. i), each founder confirms that she supports this decision.
C. Determination of the Articles of Association (lit. c)
12 The articles of association are an important document when registering the newly formed company (Art. 43 para. 1 lit. b CRO). In the deed of incorporation, the founders must confirm that the articles of incorporation are set out in the relevant version (lit. c). This requirement arises directly from the law (Art. 629 para. 1 CO).
13 The articles of association are therefore not only proof of registration with the commercial register office, but also an enclosure to the act of incorporation (Art. 631 para. 2 no. 1 CO). The notary must certify the articles of association (Art. 22 para. 4 lit. a no. 1 CRO).
14 The date of adoption of the articles of association by the founders as part of the act of incorporation is decisive for the dating of the articles of association (Art. 22 para. 1 lit. a CRO).
D. Subscription of the shares (lit. d)
15 In the act of incorporation, the founders subscribe to the shares and establish that all shares have been validly subscribed (Art. 629 para. 2 no. 1 CO). According to the law, the number, nominal value, type, category and issue amount of the shares as well as an unconditional obligation to make the contribution owed are required for the share subscription (Art. 630 CO). Art. 633-634b CO must be observed for the payment of contributions. This generally takes place prior to the formation of the company.
16 While separate subscription certificates (Art. 652 para. 1 CO) are used for capital increases, the corresponding obligation is integrated into the deed of incorporation at the time of formation. Based on Art. 630 CO (N. 15), this must therefore include the declaration of each founder on "the subscription of the shares, stating the number, nominal value, type, category and issue amount as well as the unconditional obligation to make a contribution corresponding to the issue amount" (lit. d).
E. Election of the Board of Directors (lit. e)
17 The appointment of the statutory bodies is another indispensable part of the formation. While the composition of the General Meeting of Shareholders is derived from the group of shareholders involved, the Board of Directors, which according to the law consists of one or more members (Art. 707 para. 1 CO), must be elected by the founding or General Meeting of Shareholders (cf. Art. 698 para. 2 no. 2 CO).
18 The fact that the members of the Board of Directors have been elected must be recorded in the articles of incorporation together with the relevant personal details (lit. e). The acceptance of the election by the elected member can be integrated into the deed ("who hereby declares acceptance") or documented by means of a separate declaration of acceptance of the election ("The declaration of acceptance is available.") or by signing the registration (Art. 43 para. 1 lit. c CRO).
19 In the absence of a provision to the contrary, the members of the Board of Directors are elected individually for a term of office of three years (Art. 710 para. 2 CO; for the special features of companies with listed shares, see Art. 710 para. 1 CO).
20 The personal details should allow the elected members of the board of directors to be clearly identified (cf. N. 6). For the recording of personal details (cf. Art. 24b and Art. 119 para. 1 CRO), the commercial register office may rely on the copy of the identity document (Art. 24a CRO) and, in the case of a right of representation, on the certification (Art. 21 CRO) (cf. Art. 119 para. 2 CRO for the spelling of the name).
21 The Chairwoman of the Board of Directors is only elected by the founding or general meeting of shareholders if the Articles of Association so provide (Art. 712 para. 2 sentence 2 CO) or if the company's shares are listed on the stock exchange (Art. 712 para. 1 sentence 1 CO). Otherwise, the appointment is made by the Board of Directors.
22 The Board of Directors is also responsible for granting signatory powers to the members of the Board of Directors and other persons authorized to represent the company (Art. 716a para. 1 no. 4 CO).
F. Election of the auditors (lit. f)
23 Like the members of the Board of Directors, the auditors must also be elected by the founding or general meeting of shareholders (Art. 698 para. 2 no. 2 CO). Consequently, the fact that the auditors have been elected must be recorded in the articles of incorporation (lit. f). In addition, the fact that the auditors have accepted their election must be documented to the Commercial Register Office (Art. 43 para. 1 lit. d CRO).
24 If the company is not subject to an ordinary audit by law (Art. 727 para. 1 CO), the founders may, under certain conditions, dispense with an audit and the election of an auditor (Art. 727a para. 2 CO). In this case, the deed of incorporation must state the waiver of the limited audit (lit. f).
25 The declarations of all founders required for this purpose (Art. 62 para. 1 lit. c and para. 2 CRO) can be included directly in the deed, so that the submission of a special form ("SME declaration") and separate waiver declarations of the shareholders is unnecessary (see Art. 62 para. 3 CRO).
26 If the articles of association provide for other necessary bodies, these must also be appointed and mentioned in the deed.
G. Successful liquidation (lit. g)
27 "The determination of the founders in accordance with Article 629 paragraph 2 CO" is mentioned as a further mandatory content of the deed of incorporation (lit. g). According to this legal provision, the founders must confirm in the deed of incorporation that (1) all shares have been validly subscribed, (2) the promised contributions correspond to the total issue amount, (3) the legal and statutory requirements for the contributions made are fulfilled at the time the deed of incorporation is signed and (4) there are no contributions in kind, offsetting circumstances or special advantages other than those stated in the supporting documents.
28 The latter confirmation (Art. 629 para. 2 no. 4 CO) replaces the former stampa declaration.
H. Supporting documents (lit. h)
29 In the deed of formation, the notary must name the supporting documents for the formation individually and confirm that the supporting documents were submitted to him and the founders (Art. 631 para. 1 CO). This legal requirement is also reflected in the ordinance (lit. h).
I. Signature (lit. i)
30 The signatures must also be listed: All founders or their representatives must sign the deed of incorporation (lit. i).
J. Conversion rate (lit. j)
31 If the share capital is fixed in a foreign currency (EUR, GBP, JPY or USD, see Art. 45a in conjunction with Annex 3 CRO) or if contributions are made in a currency other than that of the share capital, the exchange rates applied must be stated in the public deed in accordance with Art. 629 para. 3 CO. This requirement is set out in lit. j.
K. Further information
32 Depending on the circumstances, additional facts may or must be recorded in the certificate of incorporation. As a result, supporting documents may not be required unless they are expressly required by Art. 43 CRO (cf. Art. 43 para. 2 CRO).
33 Art. 44 CRO does not mention the formation report that may be required (Art. 635 CO; in contrast, see Art. 85 lit. d CRO for cooperatives) and the audit confirmation (Art. 635a CO). The same applies to the bank confirmation for deposits in cash and for contribution in kind agreements.
34 These are supporting documents of the deed of incorporation, which is why they must also be cited in the deed of incorporation (see Art. 631 para. 1 and 2 CO). The corresponding references in the deed are omitted if the relevant circumstances - a qualified formation or contributions in cash or in kind - do not exist.
35 The legal domicile is often stated in the deed of incorporation ("The domicile is [address and reference to own offices or declaration of domicile]."). However, it is sufficient to mention the domicile in the commercial register application.
Bibliography
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.
Materials
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»).