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- Art. 5a FC
- Art. 6 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. 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. 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. 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. f und g 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. 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)
FEDERAL CONSTITUTION
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
- I. Introduction
- II. Prerequisites for a Universal Assembly
- III. Consequences
- IV. Prerequisites not met
- V. Minutes and Conduct of Proceedings
- VI. Outlook on the revised company law
- Bibliography
I. Introduction
A. Concept of a universal meeting
1 In principle, the shareholders must be formally invited to the general meeting of a joint-stock company, subject to a notice period and with a binding indication of the items to be discussed (see Art. 700 CO). These convening formalities serve to protect shareholders and ensure that shareholders have the opportunity to exercise their participation rights at the general meeting. Among other things, this ensures that shareholders are not caught off guard at the meeting by unexpected items on the agenda and tempted to make rash decisions.
2 The law provides for an exception in Art. 701 CO, according to which a general meeting may be held without complying with the regulations prescribed for the convocation. The margin refers to this general meeting as a "universal meeting". The meeting is universal insofar as the shareholders of the partners or their representatives are comprehensively present at the meeting. It is therefore a general meeting of shareholders (or their representatives). In the French and Italian marginalia, the universal meeting is accordingly referred to as "réunion de tous les actionnaires" and "riunione di tutti gli azionisti". However, the fact that all shares of the company are present or represented is not sufficient for the meeting to be "universal" within the meaning of Art. 701 CO. Art. 701 CO also requires that the shareholders or their representatives be present without contradiction (for details on the requirements see below n. 11 ff.). A universal meeting is therefore a general meeting at which all shareholders of the company (or their representatives) are present without contradiction.
3 If this is the case, the general meeting may be held without the rules prescribed for convening it (art. 701 para. 1 CO; see below n. 28). The universal meeting may validly discuss and pass resolutions on all matters falling within the scope of business of the general meeting (art. 701 para. 2 CO). The universal meeting thus has all the powers of a general meeting (art. 698 para. 2 items 1 - 6 CO). Both the ordinary and the extraordinary general meeting may be held as a universal meeting.
B. Purpose of the universal meeting
4 The purpose of the universal meeting is "practical": the universal meeting is intended to enable shareholders to hold a general meeting at short notice and without major organisational hassle in terms of convening. This simplifies the convening of the general meeting and facilitates the holding of general meetings.
5 If all shareholders (or their representatives) are present without contradiction, i.e. agree to the holding of the general meeting without observing the convening formalities, insisting on the convening regulations would not make sense either. On the contrary, it would be objectionable and contrary to the requirement of acting in good faith (Art. 2 para. 1 CC) if a shareholder (or representative) present without objection were in a position to subsequently question the validity of the general meeting resolutions due to convocation errors.
6 At the universal meeting, shareholder protection is rather ensured in another way: The shareholder or his representative has to protect himself from possible overreaching (see above n. 1). If he does not agree with the conduct of the general meeting or needs more time to prepare an item for discussion, he may not participate in the meeting, leave it at any time or object to the handling of individual agenda items (see below n. 15 ff. and n. 20 ff.). Each shareholder thus has a veto right against the conduct of the general meeting as a universal meeting.
7 Due to this right of veto, the holding of a universal general meeting is not recommended if resolutions are to be passed on issues that are fundamentally opposed by individual shareholders. Similarly, a universal meeting is not recommended if the shareholders are divided or if disruptive or delaying manoeuvres are to be expected.
C. Practical significance of the universal meeting
8 In practice, single-member companies, companies with a small shareholder base and group subcompanies with a 100 per cent shareholding usually hold their general meetings as universal meetings.
9 In companies with a broad shareholder base, on the other hand, it is generally not possible to gather all shares in one meeting. Accordingly, it is practically impossible to hold a universal meeting for such companies.
10 Likewise, due to the legal protection provisions in favour of the participants, the holding of a universal meeting is generally not possible if the company has issued participation capital.
II. Prerequisites for a Universal Assembly
11 According to Art. 701, para. 1 CO, two things are necessary for a valid universal meeting:
All shareholders of the company are continuously present or legally represented.
No shareholder or representative objects to the holding of the universal meeting.
A. Presence or representation of all shares
1. continuous presence of all shares
12 For a legally valid universal meeting, it is firstly required that all shareholders are continuously present or legally represented. The universal meeting is therefore only valid if all shares are represented. An exception to this is made for treasury shares, as the voting right is suspended for these shares (art. 659a para. 1 CO).
13 If all shares are represented in the hands of one shareholder, it is thus sufficient for a universal meeting in the extreme case that only one shareholder or only one representative is present and conducts the meeting.
14 Only the presence of the shareholder or his representative is required. Active participation in the meeting, for example by voting, is not required for a valid universal meeting. In other words, abstention from voting is permitted at the universal meeting.
2. Leaving the meeting
15 The presence of all shares is required for the entire duration of the universal meeting. If a shareholder or his representative leaves the meeting, the universal meeting is immediately terminated. However, the departure of a shareholder shall not affect resolutions already adopted. Resolutions passed previously shall in principle remain legally valid. Exceptionally, they may be invalid if it is obvious that they would never have been passed or would have been pointless without the resolutions provided for later.
16 After the departure, the meeting of the remaining shareholders may continue to hold non-binding negotiations. However, resolutions of the general meeting can no longer be validly passed (on the consequences see below n. 33 ff.).
17 If not all shares are represented at the beginning of the meeting (or if a shareholder leaves the meeting), the meeting may (again) be conducted as a universal meeting after the arrival or return of the last shareholder. By virtue of the fact that the shares are (again) fully represented at the meeting, subsequent resolutions may be passed as a universal meeting. In contrast, the resolutions passed previously, when the shareholders were not fully represented, are not cured. However, if all shareholders (or their representatives) are present, the resolutions on the agenda items already passed may be repeated.
3. Written consent?
18 An absent shareholder cannot consent in writing in advance or afterwards to the resolutions of a universal meeting, although this is often attempted in practice. Such consent is invalid unless it could be interpreted as a power of attorney to represent the shares. If the shareholder does not wish to attend the meeting but does not wish to prevent the universal meeting from taking place, it makes sense for him to appoint a representative in advance who can represent his shares at the meeting.
4. Presence of the board of directors?
19 Only the presence of all shareholders (or their representatives) is necessary for the validity of the universal meeting, but not the presence of the members of the board of directors, even if they are entitled to participate in the meeting and to submit motions according to art. 702a CO. Members of the board of directors may also not prevent the universal meeting by objecting to it. In the revised company law, a tightening of the wording of Art. 702a CO clarifies that neither board members nor members of the executive board have a legally enforceable right to participate.
B. No objection
20 At the universal meeting, shareholders waive the observance of convening formalities. However, no shareholder has to put up with a general meeting being held as a universal meeting (so-called veto right of the shareholder; see above n. 6). Secondly, a valid universal meeting requires that all shareholders (or their representatives) expressly or tacitly agree to the holding of the general meeting as a universal meeting. Conversely, it is required that no shareholder (or his representative) objects to the universal meeting.
1. Form of the objection
21 The objection of the shareholder or his representative is not bound by any form. However, the shareholder (or representative) shall express the objection clearly and unambiguously. In particular, the objection must be distinguished from a mere abstention from voting, which is permissible at a universal meeting (see above, n. 14).
2. Content of the objection
22 The objection of the shareholder (or his representative) may be directed against the holding of the universal meeting or against the passing of a resolution on a specific agenda item. The latter for the very reason that a shareholder (or his representative) may legitimately take the view that different items of business are ready for resolution in different ways. Moreover, the shareholders could break off a first universal meeting and immediately thereafter meet for a new universal meeting without the disputed agenda item. Therefore, it does not make sense to break off the universal meeting just because a shareholder (or his representative) objects to an item on the agenda. Rather, the universal meeting is held without the disputed agenda item.
23 On the other hand, an objection to individual motions on an agenda item is inadmissible. In case of doubt, such an objection must be interpreted as an objection to the entire agenda item (see below, n. 40).
24 Nor is it permissible to declare an objection conditionally. For example, a shareholder may not make the waiver of an objection to an item on the agenda conditional on the outcome of the vote.
3. Timing of the objection
25 The shareholder's (or proxy's) objection may be made before or during the meeting.
26 If the objection was raised before the meeting but the shareholder or his representative attends the meeting, he must repeat his objection. Otherwise, the shareholder's attendance without objection shall, in principle, be deemed to constitute a waiver of objection.
27 During the meeting, the shareholder or his representative may record his objection. If the shareholder (or his representative) raises an objection after the beginning of the meeting, such objection may only relate to matters to be decided. An objection against resolutions already passed is not possible and the resolutions passed until then remain valid (see above n. 15). The objection therefore has no retroactive effect, but only for the future.
III. Consequences
A. Waiver of convening formalities
28 If the above two conditions for holding a universal meeting are met, the general meeting may be held without the formalities prescribed for convening it (Art. 701, para. 1 CO). However, the formal facilitations of the universal meeting are limited only to the legal and statutory convening requirements. For example, no actual convocation is required for a universal meeting and the agenda items can be changed as desired.
29 Moreover, the legal and statutory provisions applicable to the general meeting must also be complied with without restriction for the universal meeting. In particular, the legal and statutory quorums (Art. 703 et seq. CO) must be observed. Accordingly, unanimity is not required at the universal meeting, but as a rule the majority of the share votes decides (art. 703 CO). The provision on the recording of the meeting (art. 702 para. 2 CO) also applies without restriction to the universal meeting (see below n. 38 ff.).
30 If the legal requirements of Art. 701 para. 1 CO are met, any meeting of shareholders (or their representatives) may in principle be declared a general meeting. For example, a joint meeting of all shareholders may be expanded into a universal meeting and the resolutions reserved for the general meeting may be passed at this meeting.
31 However, not every informal meeting of all shareholders of the company constitutes a universal meeting without further ado. For example, an informal meal together at the lunch table in a family company is generally not a general meeting, even though all shareholders would be represented at the meeting. For a valid universal meeting, the shareholders must be aware that they are forming a general meeting with a quorum and they must want to do so. In addition, it must be remembered that (apart from the invitation formalities) the other requirements for a general meeting must be complied with, in particular minutes must be kept (see above n. 29).
B. Cure of Convening Deficiencies
32 If an "ordinary" general meeting was convened, but the convening was defective, for example because the notice period was not observed or the agenda items were not stated in a legally adequate manner, the convening defects are cured with the holding of a universal meeting.
IV. Prerequisites not met
A. Nullity
33 According to the case law of the Federal Supreme Court, resolutions passed at a "universal meeting", even though not all shares were present or represented at the meeting, suffer from a serious formal defect and are null and void (Art. 706b No. 1 CO). It is irrelevant whether the shareholder who was not present could have prevented the resolution with his voting power.
34 The nullity of a resolution must be established ex officio by the court at any time. This also means that anyone (i.e. also non-shareholders, such as creditors) can in principle invoke a null and void general meeting resolution at any time. Nevertheless, it is required that there is an interest worthy of protection in the determination of the nullity of the general meeting resolution (Art. 59 para. 2 lit. a CCP).
35 The nullity can also be established in appeal proceedings, namely also by the Federal Supreme Court. However, the Federal Supreme Court judges the nullity of a general meeting resolution as a legal transaction under private law only insofar as the nullity can be based on the facts established by the lower court or a legally sufficient supplementation of the facts is required.
B. Conversion to an ordinary general meeting of shareholders
36 If a shareholder or his representative leaves the meeting, it may be converted into an "ordinary" general meeting. However, such a conversion will usually fail because the convening rules have not been complied with. If, on the other hand, the convening rules have been observed, the meeting can continue as an "ordinary" general meeting after a shareholder has left.
37 The change from a universal meeting to an "ordinary" general meeting must be recorded in the minutes of the meeting. If the meeting continues as an "ordinary" general meeting, the ordinary convening rules shall apply. In particular, the items of business on which the general meeting may decide are limited to those mentioned in the notice of meeting.
V. Minutes and Conduct of Proceedings
38 The fact that all shareholders or their representatives are present and that no one objects shall be recorded in the minutes of the universal meeting. Under certain circumstances it may also be appropriate to record that all shareholders or their representatives were present until the end of the meeting and to have the minutes signed by all those present.
39 If objections were raised against the universal meeting as a whole or against individual agenda items, this shall be recorded in the minutes. The chairperson of the universal meeting shall be advised to clarify any ambiguities regarding the objection and to ensure legal clarity. If the shareholder's statement is not clear, the chairman should ask the shareholder or his representative whether he objects and if so, against what exactly (against the universal meeting as a whole or against which specific agenda item).
40 If a shareholder raises an inadmissible objection to a motion (see n. 23 above), it is also up to the chairperson to inform the shareholder and ask whether the objection is directed against the entire agenda item. If this is the case, the hearing must be held without the disputed agenda item (see above n. 22). If the shareholder withdraws his objection, the universal meeting shall be continued without further ado. If, on the other hand, the shareholder or representative (inadmissibly) maintains his objection to an individual proposal, the statement is to be interpreted as an objection to the entire agenda item. Accordingly, the hearing is to be conducted without this item. In such situations, it is recommended that the individual statements be recorded (verbatim).
VI. Outlook on the revised company law
41 The revised Companies Act 2020 does not change the substance of the previous norm of Art. 701 para. 1 and 2 CO. Paragraph 1 of the revised Art. 701 CO merely clarifies the terminology by replacing the term "formal requirements" with "regulations". This is against the background that the universal assembly can not only deviate from formal requirements, but also from other regulations, for example with regard to convocation deadlines. Art. 701 para. 2 CO is adapted to the newly envisaged possibility of using electronic means. "Be present" is therefore replaced by the term "participate". This expresses that a physical presence of the shareholder or his representative is not mandatory.
42 On the other hand, paragraph 3 of Art. 701 CO is new. Under the current law there is no possibility to hold a general meeting in absentia, circular resolutions are inadmissible. In the new company law, more room for manoeuvre is granted. Art. 701 para. 3 revOR provides that resolutions of the general meeting may also be passed in writing (on paper) or electronically. For this type of resolution, all shareholders or representatives must give their consent.
Bibliography
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Böckli Peter, Schweizer Aktienrecht, 4. Aufl., Zürich / Basel / Genf 2009.
Bürgi F. Wolfhart, Zürcher Kommentar, Band V/5b/2, Zürich 1969.
Dubs Dieter / Truffer Roland, in: Honsell Heinrich / Vogt Nedim Peter / Watter Rolf (Hrsg.), Basler Kommentar, Obligationenrecht II, 5. Aufl., Basel 2016.
Forstmoser Peter / Meier-Hayoz Arthur / Nobel Peter, Schweizerisches Aktienrecht, Bern 1996.
Frick Bruno / Stäheli Thomas, in: Wibmer Jeannette K. (Hrsg.), Aktienrecht – Kommentar, Zürich 2016.
Meier-Hayoz Arthur / Forstmoser Peter / Sethe Rolf, Schweizerisches Gesellschaftsrecht, 12. Aufl., Bern 2018.
Peter Henry / Cavadini Francesca, in: Tercier Pierre / Amstutz Marc / Trigo Trindade Rita (Hrsg.), Commentaire Romand, Code des Obligations II, 2. Aufl., Basel 2017.
Studer Christoph D., Die Einberufung der Generalversammlung der Aktiengesellschaft, Diss., Bern 1995.
Tanner Brigitte, in: Handschin Lukas (Hrsg.), Zürcher Kommentar, Art. 698 – 726 und Art. 731b OR, 3. Aufl., Zürich / Basel / Genf 2018 (zitiert: ZK-Tanner).
dieselbe, in: Roberto Vito / Trüeb Hans Rudolf, Handkommentar zum Schweizerischen Privatrecht, Personengesellschaften und Aktiengesellschaft / Vergütungsverordnung, 3. Aufl., Zürich / Basel / Genf 2016 (zitiert: CHK-Tanner).
Von der Crone Hans Caspar, Aktienrecht, 2. Aufl., Bern 2020, ebenfalls abrufbar unter: https://www.aktienrechtweb.ch.
Von Steiger Fritz, Die sog. Universalversammlung der Aktionäre, SAG 12 (1939/1940), S. 193 ff.