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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
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- 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
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- Art. 19 PRA
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- 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
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- 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. The group of persons obliged to provide information
- III. Exercising the right to information and inspection: the "chain of command
- IV. The scope of information rights
- V. The right to inspect books and records
- VI. The temporal aspect of the right to information under Art. 715a CO
- VII. The judicial enforcement of the right to information and inspection
- Bibliography
I. Introduction
1 The right of members of the board of directors to information and inspection has been governed by a separate provision in Art. 715a CO since the 1991 revision of company law. This provision remained unchanged under the 2020 Company Law Reform, although the regulation of the shareholder's rights to information was changed.
2 Art. 715a para. 1 CO sets out the principle of the unrestricted right to information. Paragraph 2 in turn specifies the requests for information during board meetings. For requests for information outside board meetings, paragraph 3 partially restricts the right to information. The right to inspect books and records is regulated in paragraph 4. Paragraph 5 contains a procedural provision if the chairman of the board of directors rejects a request for information, hearing or inspection. Finally, paragraph 6 clarifies that regulations and resolutions of the board of directors which extend the right to information or inspection of the members of the board of directors are permissible. Thus, the rights contained in paragraphs 1 to 4 can be qualified as inalienable or as a mandatory minimum standard. On the other hand, the restrictions set out in paragraphs 3 and 4 can also be completely removed or the circle of those obliged to provide information can be extended.
3 Members of the board of directors may request information during meetings of the board of directors from the other members of the board of directors and any other persons present who are entrusted with the management of the company. Outside of meetings of the Board of Directors, a member of the Board of Directors may request information on individual transactions only with the authorisation of the Chairman. The consent of the Chairman of the Board of Directors is also required for the inspection of books and files.
4 The right of inspection and information is caught between the board's need for information and its improper use. The responsibility of the board of directors for breaches of duty presupposes a comprehensive level of knowledge and consequently also corresponding access to information. On the other hand, there is the urgent need of the company to prevent possible abuses by individual members of the board of directors.
5 On the one hand, an act of abuse may exist if information is used in the self-interest of a member of the board of directors, whereby it is assumed that such self-interest is contrary to the interests of the company and that the member of the board of directors would therefore have to resign. On the other hand, abuse can also occur in the case of the disclosure of business secrets. Accordingly, it is disputed in the doctrine whether the company's interest in secrecy conflicts with the board member's need for information or can limit it.
II. The group of persons obliged to provide information
6 It already follows from the wording of the law that the members of the board of directors and the persons entrusted with the management of the company are obliged to provide information (Art. 715a para. 2 CO). Accordingly, the duty to provide information also extends to delegates, directors, authorised signatories, agents and employees who, under the supervision of the management, perform management tasks independently as well as in their own authority. Thus, silent and de facto members of the board of directors as well as substitutes are also subject to the duty of disclosure. Only employees and auxiliary persons who are not authorised to sign are exempt from the duty to provide information.
III. Exercising the right to information and inspection: the "chain of command
7 The "chain of authorities" for the assertion of the right to information and inspection is structured as follows:
Requests for information must in principle be addressed to the Chairman of the Board of Directors.
During meetings of the Board of Directors, requests may be made directly to all persons obliged to provide information (cf. n. 3). In this context, no authorisation of the Chairman or the entire Board of Directors is required.
Outside of meetings of the board of directors, the ordinary "chain of command" must be observed unless otherwise provided for in organisational regulations. This is important in view of the fact that equal information of all members of the board of directors must be ensured. The chairman of the board of directors must therefore be informed of the request for information and its response in order to be able to inform the other members of the board of directors if necessary. If the Chairman has to decide on a request for information or inspection, he must make his decision according to due discretion and a weighing of interests. The president must give reasons for the rejection of a request within the meaning of art. 715a paras. 3 and 4 CO. If the request is rejected by the chairman, the member of the board of directors concerned may appeal to the full board of directors, whose decision is final subject to judicial review (cf. n. 23 ff.). The board of directors has to decide according to the same criteria as the chairman. In our opinion, the member making the request must abstain from the decision of the full board of directors, as he or she is likely to be in a conflict of interest.
8 Questions about the course of business are exempt from the right of appeal. The report on the course of business shall bring to the attention of the individual member of the Board of Directors the fulfilment or non-fulfilment of the business prospects in the last period of time as well as special events.
9 If the board of directors has formed committees which are not chaired by the chairman of the board of directors, a different "chain of command" results. Members of the Board of Directors who do not belong to these committees must inquire directly with the chairperson of the committee. Furthermore, the committee must be able to obtain information directly from members of the Executive Board in the course of its work.
IV. The scope of information rights
A. The comprehensive right to information during board meetings
10 According to Art. 715a para. 1 and 2 CO, the right to information during board meetings is comprehensive. Comprehensive means that the board of directors is entitled to information on all matters concerning the company. This includes both a right to information on the general course of business and a right to detailed information on individual factual transactions. The only prerequisite is that there is a certain connection between the board mandate and the information. Even if the right to information is primarily limited to transactions within the company itself, the right to information of a member of the board of directors at a parent company also extends to transactions concerning the subsidiary. Excluded from the right to information is information concerning the private affairs of employees or information that serves to satisfy the private interests of the members of the board of directors.
11 All members of the board of directors and the persons entrusted with the management of the company have an unlimited duty to provide information. This means more than just answering questions posed. Rather, the designated persons are also obliged to report spontaneously on matters of importance to the board of directors. Finally, only an informed board of directors can also ask the right questions.
12 The chairman must ensure that questions can be asked and also answered by the appropriate person. In this context, he must either invite the relevant persons to the meeting or collect written documents. However, it cannot be demanded of the persons obliged to provide information that they are always available for spontaneous enquiries. Rather, in such a case, the information must be provided as soon as practically possible.
B. The unrestricted right to information on the course of business outside board meetings
13 As a correlate to the personal responsibility of the board of directors, it has an unlimited right to information about the course of business also outside meetings of the board of directors. With the approval of the Chairman, the Board of Directors may also request information on individual transactions. The authorisation by the Chairman of the Board of Directors shall be granted in principle. The authorisation may only be refused within the limits already described (cf. in particular the cases of abuse listed under n. 5), whereby the principle of proportionality must always be observed. The principle of proportionality may also lead to a request for information being granted only in part.
C. The right to timely and complete submission of documents before the board meeting
14 As part of the right to information, the members of the board of directors are entitled to the timely and complete submission of documents prior to the respective meeting. The scope of the relevant documents depends on the agenda and the topics to be discussed. In other words, there is a right to comprehensive information prior to a Board meeting. The law does not specifically regulate the information to be provided in preparation for a board meeting. The Chairman of the Board of Directors is responsible for preparing and chairing the meeting. According to the Swiss Code of Best Practice 2023, the chairman of the board of directors is the guarantor of information. In cooperation with the executive board, he must ensure that the members of the board of directors are informed in a timely manner about all aspects of the company that are relevant for the formation of the will and the supervision. In connection with the right to timely and complete submission of documents prior to the board meeting, the Swiss Code speaks of "clearly prepared and comprehensible documents" which must be made available to the board members. In our opinion, this formulation is convincing from a factual point of view, which is why the Swiss Code can be used as an interpretation aid in practice.
15 The members of the board of directors should, as far as possible, receive the clearly prepared documents prior to the meeting, whereby the delivery can be made both by post and electronically, regardless of whether the meeting takes place physically, electronically or virtually afterwards. Otherwise, the Chairman shall arrange for the documents to be made available for study with sufficient time before the meeting. This ensures that all Board members can form an informed opinion with regard to decisions.
16 The documents for a Board meeting must be available in good time. If this is not the case, the Board members must take action. If necessary, they must move at the meeting to reject or postpone the business. What period of time is still considered reasonable must be assessed on a case-by-case basis.
V. The right to inspect books and records
17 The members of the board of directors have an individual right to inspect books and records both inside and outside board meetings. The terms are to be interpreted broadly to include all corporate records recorded on written or electronic media to which the company has access. In particular, members have a right to the minutes of meetings and the corresponding documentation, unless there is a case of abuse (cf. n. 5). This also applies to members who are in recusal.
18 The term "books" includes the actual business books within the meaning of Art. 957 ff. CO as well as correspondence. However, this does not include the share register, as each member of the board of directors has an unrestricted right of inspection in this respect, as he or she shares responsibility for it. Finally, each member of the Board of Directors has free access to the files of the Board of Directors, its committees and in particular the Chairman's Committee. The term "files" basically includes all documents relating to the activities of the company, in particular also all relevant computer data.
19 The right of inspection does not include the unconditional right to make copies of the documents and to take them away. However, the president may permit copying of relevant parts of the internal documentation in the interest of the company. The right of inspection must be exercised in person, whereby the member of the Board of Directors who inspects the documents may submit a request to the President to be accompanied by a competent expert.
20 The right of inspection according to art. 715a para. 4 CO is most restricted by law. Thus, the books and records may only be inspected "to the extent necessary for the performance of a task". Whether this requirement is fulfilled thus depends primarily on the organisation of the corporation in question. The member of the board of directors requesting inspection must indicate to the chairman of the board of directors how the inspection is relevant to the performance of his duties. Whether the request for inspection (or also for information requests) to the chairman of the board of directors may be made in writing is disputed in the doctrine. For evidentiary reasons, the written form for the request (and possibly the answer to it) may be necessary. In our opinion, the written form can be required and results from the right and duty of the board of directors to organise itself. However, the requirements for the form should not be set too high in any case: A request for inspection by e-mail should be considered sufficient in any case, even if the organisational regulations require it to be in writing. The chairman decides whether the board member is granted access.
VI. The temporal aspect of the right to information under Art. 715a CO
21 The right to information begins with the election as a member of the board of directors and ends with his or her departure through the end of the term of office, resignation or being voted out of office. After resignation as a member of the board of directors, he or she becomes either an ordinary shareholder or an outside third party who has no right to additional information. In principle, this also applies if the request for information concerns circumstances or documents dating back to the period of activity of the board of directors. This is justified by the lack of interest of a former member of the board of directors in asserting the right to information and inspection. If a member of the board of directors is threatened with dismissal, for example because his dismissal is on the agenda of the upcoming general meeting, it is conceivable in principle to apply to the competent court for precautionary measures (also superprovisional). However, such measures are only granted under substantially increased requirements.
22 Only if a former member of the board of directors is dependent on access to the required information during the former term of office due to a legal dispute - in particular due to liability or fee claims - is there a corresponding claim against the company even after leaving office.
VII. The judicial enforcement of the right to information and inspection
23 For a long time, the question of the judicial enforceability of the right to information of members of the board of directors pursuant to Art. 715a CO by means of an action for performance was highly controversial in the doctrine. The law does not explicitly provide for the possibility of an action. In 2018, the Federal Supreme Court ruled in favour of the admissibility of an action for performance. Accordingly, the right to information can also be enforced in court outside of board meetings. After a detailed discussion of doctrinal opinions and an interpretation of the relevant provision, the Federal Supreme Court came to the conclusion that the purpose of Art. 715a CO is to ensure that the board of directors can effectively and efficiently perform its duties as a management and supervisory body. If the legislator therefore assumed that the information rights protected by Art. 715a CO were necessary for the effective fulfilment of the aforementioned tasks, this purpose in particular spoke in favour of the possibility to sue. Moreover, the knowledge that information rights are not actionable could unjustifiably give impetus to a refusal of information by the board of directors. In this regard, an action for nullity of the board of directors' resolution would not remedy the situation if it did not result in the granting of information. However, the court must always examine in each individual case whether the requested information is necessary to fulfil the mandate of the board of directors or whether the inspection would be contrary to the overriding interests of the company.
24 The decision of the Federal Supreme Court may have to be upheld, as the rights to information and inspection of the members of the board of directors set forth in Art. 715a CO are a fundamental prerequisite for their dutiful performance of their duties pursuant to Art. 717 CO. Such an action for performance falls within the scope of summary proceedings.
25 The claim under Art. 715a CO is personal in nature and cannot be assigned. As information is to be made available by means of an action for performance, which is intended to serve the performance of the statutory duties, only the person who is still a member of the board of directors not only when the action is initiated, but also when the judgement is rendered, is in principle entitled to take action. An exception has to be made in the aforementioned example of the former member of the board of directors who is dependent on the information in the context of a lawsuit (cf. n. 22). It is not the chairman of the board of directors or the board of directors as a whole who has the right to sue, but the company.
Bibliography
Bächtold Thomas C., Die Information des Verwaltungsrates, Bern 1997.
Böckli Peter, Schweizer Aktienrecht, 5. Aufl., Zürich 2022.
Bühler Christoph B., Kommentierung zur Art. 715a OR, in: Handschin Lukas (Hrsg.), Zürcher Kommentar, Die Aktiengesellschaft, Generalversammlung und Verwaltungsrat. Mängel in der Organisation, Art. 698–726 und 731b OR, 3. Aufl., Zürich 2018 (zit. ZK-Bühler).
Forstmoser Peter, Organisation und Organisationsreglement der Aktiengesellschaft, Zürich 2011.
Forstmoser Peter/Küchler Marcel, Schweizerisches Aktienrecht 2020. Mit neuem Recht der GmbH und der Genossenschaft und den weiteren Gesetzesänderungen, Zürich 2021.
Forstmoser Peter/Meyer-Hayoz Arthur/Nobel Peter, Schweizerisches Aktienrecht, Bern 1996.
Killias Laurent, Gerichtliche Durchsetzung von Informationsrechten durch den einzelnen Verwaltungsrat, in: Notter Markus/Weber Rolf H./Heinemann Andreas/Baumgartner Tobias (Hrsg.), Europäische Idee und Integration – mittendrin und nicht dabei? Liber amicorum für Andreas Kellerhals, Zürich 2018, S. 337–349.
Krneta Georg, Praxiskommentar Verwaltungsrat. Art. 707–726 OR und Spezialgesetze. Ein Handbuch für Verwaltungsräte, 2. Aufl., Bern 2005.
Meyer-Hayoz Arthur/Forstmoser Peter/Sethe Rolf, Schweizerisches Gesellschaftsrecht. Mit neuem Firmen- und künftigem Handelsregisterrecht und unter Einbezug der Aktienrechtsreform, 12. Aufl., Bern 2018.
Moschen Corina/von der Crone Hans Caspar, Gerichtliche Durchsetzung der Informationsrechte nach Art. 715a OR, SZW 2018, S. 304–313.
Müller Lukas/David P. Henry, Transaktionen mit nahestehenden Personen im Unternehmensalltag – Eine praxisorientierte Perspektive und Empfehlungen, in: Müller Matthias P.A./Forrer Lucas/Zuur Floris (Hrsg.), Das Aktienrecht im Wandel – Zum 50. Geburtstag von Hans-Ueli Vogt, Zürich et al. 2020, S. 45–70.
Müller Roland/Lipp Lorenz/Plüss Adrian, Der Verwaltungsrat. Ein Handbuch für Theorie und Praxis, 5. Aufl., Zürich 2021.
Naef Monika/Rieger Sebastian, Zur Durchsetzung von Informationsrechten nach Art. 715a OR, AJP 5/2018, S. 600–608.
Plüss Adrian/Facincani-Kunz Dominique, Kommentierung zu Art. 715a OR, in: Roberto Vito/Trüeb Hans Rudolf (Hrsg.), Handkommentar zum Schweizer Privatrecht, Personengesellschaften und Aktiengesellschaft – Vergütungsverordnung, Art. 530–771 OR – VegüV, 3. Aufl., Zürich 2016 (zit. CHK-Plüss/Facincani-Kunz).
Roth Pellanda Katja, Organisation des Verwaltungsrats, Zürich 2007.
von der Crone Hans Caspar, Aktienrecht, 2. Aufl., Bern 2020.
Wernli Martin/Rizzi Marco A., Kommentierung zu Art. 715a OR, in: Honsell Heinrich/Vogt Nedim Peter/Watter Rolf (Hrsg.), Basler Kommentar, Obligationenrecht II, 5. Aufl., Basel 2016 (zit. BSK-Wernli/Rizzi).