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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
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- Art. 43a FC
- Art. 55 FC
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- 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
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- 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
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- Art. 31 PRA
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- Art. 32a PRA
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- Art. 59a PRA
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- Art. 75 PRA
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- 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
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- 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. History of origins
- III. Legal system and legal nature
- IV. Facts
- V. Legal consequences
- VI. Enforcement
- Materials
- Bibliography
I. Introduction
A. Overview of the content and background of the provision
1 Art. 734f CO anchors binding gender benchmarks in Swiss company law for the first time. Accordingly, if the statutory benchmarks are not met, the companies covered by the norm must report on the reasons for this under-representation and on the measures taken to promote the under-represented gender. In everyday political life, the term "gender benchmarks" is also referred to by the catchy but not very precise buzzword "women's quota". Even a glance at this legal mechanism reveals that it is not a real quota, but only (but nevertheless) a guideline with binding force of a "lesser degree". This peculiarity will be discussed in detail later. In contrast to many foreign counterparts, Art. 734f CO is characterised by the much-vaunted Helvetic ("friendly federal") inclination towards compromise and moderation.
2 Art. 734f CO is a genuinely socio-politically (and thus legally) motivated provision. It is an expression of the trend of our time, in which the private and the public are becoming increasingly intertwined. The "advancement of women" is no longer just a matter for the state (the public), but also for private companies. It is therefore not surprising that the amendment to the Stock Corporation Act of 2020 threatened to fail because of this one provision, which is hardly decisive in view of the whole - so much did it heat up political tempers! In any case, in the literature on company law, concerns have rightly been raised that company law, despite its outstanding importance for economic life, is not the appropriate place for the realisation of socio-political desiderata. Gender equality is an issue for society as a whole and for the economy as a whole; an internal, close, exclusive connection with company law is alien to it. The aim of company law (company law in general) is rather to ensure the functioning of the organisation under company law in the interests of the economic "owners" of the company (i.e. in the case of the public limited company, the shareholders); public limited companies, even those listed on the stock exchange, are not part of the (political) public, but subjects of the private legal order in the service of their owners (shareholders). Of course, the legislator, in its plenitude of power, does not need to concern itself with such systematic and theoretical considerations of principle.
B. Purpose of the Norm
3 The purpose of Art. 734f CO is to realise the constitutional mandate given to the legislature to ensure the actual equality of men and women at work (Art. 8 para. 3 sentence 2 BV). Although the wording of the provision does not refer to a specific gender and is therefore formulated neutrally, it is clear from the legal situation and the history of the provision that the aim of the provision is to increase the proportion of women in management. According to the Federal Council's message, the provision is intended to send a clear signal to the business community to "intensify efforts to actively and comprehensively promote women in management, the gender that is still significantly underrepresented in top management". However, the provision does not seek to impose a specific gender ratio in management by force; it only seeks to work towards this by means of mandatory reporting.
C. Legal situation; comparison with other countries
4 Empirically, it is clear that women are less strongly represented than men on the management floors of large (mostly listed) companies in Switzerland. However, for some time now there has been a discernible trend towards a balanced representation of both genders both on the boards of directors and on the executive boards of such companies. Not only is it sometimes declared in the media that it wants to significantly increase the proportion of women in the most important management positions in the coming years. Since 2012, investors have even shown a clear preference for female board members - even though gender guidelines were only officially included in the revision of company law at the end of 2014. According to the Schilling Report 2022, the proportion of women on the boards of the 100 most important Swiss companies is now 26 per cent (2010: 10 per cent), and 17 per cent (2005: 4 per cent) on the executive boards. The proportion of women on the boards of SMI-listed companies is somewhat higher: 30 percent (2010: 11 percent), and 19 percent (2010: 5 percent) on the executive boards. According to the European Women on Boards network, Switzerland ranks 15th out of 19 in terms of the proportion of women on boards of directors and 14th in terms of management boards. The (current) gap compared to the European countries can probably be explained by the fact that efforts have been underway there for years to significantly increase the proportion of women in management, namely by means of binding gender quotas.
D. Constitutional starting position
5 The constitutional issues associated with the introduction of gender benchmarks cannot and should not be discussed in detail here. Art. 734f CO interferes with the economic freedom protected by constitutional law, which includes, among other things, the right of men to free access to private-sector gainful employment and business activities, as well as the right of private companies to freely choose their labour relations and to freely organise themselves (freedom to determine the composition of their own management bodies).
6 However, the literature here, citing Art. 8 para. 3 sentence 2 of the Federal Constitution, is of the opinion that the gender benchmarks and the chosen comply-or-explain approach, as comparatively "mild" measures, are within the legal requirements; they are ultimately proportionate and constitutional encroachments on the affected fundamental rights. In its message on the new company law, the Federal Council also stated that in view of the obligation to only have to declare non-compliance with the gender benchmarks, the restriction of economic freedom was proportionate. The justification for the state intervention was Article 8 para. 3 sentence 2 of the Federal Constitution, according to which the law must ensure the legal and actual equality of men and women, especially at work; this also included measures to compensate for the under-representation of women in the management bodies of private companies or the specification of target figures.
7 This justification by the Federal Council and the literature has rightly been criticised in the literature: The empirically established under-representation of women in management bodies does not necessarily lead to the conclusion that there is a lack of equality (discrimination). On the contrary, the Federal Supreme Court has clearly rejected equality of outcome in this sense. Regardless of this, there should ultimately be no constitutional concerns that would make the gender benchmarks appear unconstitutional. Admittedly, with or despite the affirmation of the constitutional admissibility of gender benchmarks, the legal-political question of whether it makes sense to introduce them in the private sector remains unanswered. The focus of gender benchmarks solely on the balanced representation of both genders in the top management of large companies here could distract from the actual challenges for gender equality, which lie, for example, in the area of creating conditions for better reconciliation of family and work.
II. History of origins
A. Legal situation prior to the 2020 amendment to the Companies Act
1. Law
a. At board level
8 Until now, legally binding quotas or benchmarks for gender representation were alien to Swiss company law. Prior to the entry into force of Art. 734f CO as of 1 January 2021, the general meeting of shareholders was free to introduce an eligibility requirement in the articles of association with effect for the board of directors, which aimed at ensuring a certain (percentage) minimum gender representation. The question of the admissibility of a gender-based eligibility requirement has so far been discussed only cursorily in the legal literature. As an objection against the admissibility of a statutory regulation concerning gender representation, the protection of personality and the principle of equal treatment have been asserted in particular. However, this view cannot be accepted. It is not clear why the consideration of other personal characteristics such as age or nationality should be permissible in the articles of association, but not gender. The general meeting (of a listed company) therefore already had the possibility under the old law to regulate gender at the level of the board of directors.
b. At the executive board level
9 The general meeting of shareholders may limit the delegation competence of the board of directors by way of a provision in the articles of association (Art. 627 No. 12 CO or, in future, Art. 716b para. 1 revOR). Thus, both before and after the entry into force of Art. 734f CO, not only statutory provisions on the appropriate representation of the sexes, but also percentage quotas in the executive board are to be regarded as permissible.
2. Self-regulation
10 For a long time, the Swiss Code of Best Practice for Corporate Governance (Swiss Code) did not contain any regulation regarding gender representation in management bodies. Against the backdrop of the political discussion surrounding the demand for a stronger representation of women in management bodies, the Swiss Code in the revised version of 2014 recommends under section 12 ("Composition of the board of directors and executive board") that the board of directors should include both male and female members, combined with the obligation to "comply or explain". At the same time, however, it is emphasised that candidates of both genders must have the necessary skills to form their own opinions in order to ensure a critical exchange of ideas with the executive board.
B. Course of the legislative work
11 Neither the 2005 preliminary draft nor the 2007 draft of the new company law included provisions on the composition of the board of directors or the executive board. Nor were transparency provisions for gender diversity in corporate governance included. It was not until the preliminary draft of 28 November 2014 that the Federal Council submitted a proposal for a legal provision regarding gender diversity, which was almost identical to the current provision of Art. 734f CO ("guideline values for the representation of both genders on the board of directors and executive board" of larger listed companies).
12 During the consultation process, the goal of better representation of women on the board of directors and executive board of listed companies was generally considered desirable. However, the opinions on the concrete implementation were controversial. Business associations and bourgeois parties demanded that a legal norm be dispensed with. A diametrically opposed position was taken by various women's rights organisations and parties belonging to the social democratic spectrum, which welcomed the regulation and sometimes called for more effective control mechanisms and sanctions.
13 Despite this initial situation, the Federal Council maintained its original proposal from 2014 in the 2016 draft, whereby, in contrast to the 30 per cent of women on executive boards required in the 2014 preliminary draft, it should now be just 20 per cent, and this after a longer transition period of ten years instead of five. For members of the board of directors, the proposal of the 2014 preliminary draft remained unchanged.
14 The National Council approved the regulation proposed by the Federal Council in the 2016 draft in the 2018 summer session after heated discussions - with a majority of one vote. On 19 June 2019, the Council of States joined the National Council by 27 votes to 13.
C. Entry into force
15 The revision of company law was adopted on 16 June 2020. Unlike the other adjustments, the introduction of the gender guidelines did not require any implementing provisions. At its meeting on 11 September 2020, the Federal Council therefore enacted the corresponding provisions on gender benchmarks with effect from 1 January 2021.
III. Legal system and legal nature
A. Systematic position in the law
16 Art. 734f CO will in future be found in the fourth section concerning the remuneration of listed companies (Art. 732 et seq. revOR), which was included in the course of the revision of company law in the summer of 2020 for the purpose of transferring the OaEC into the CO and will enter into force in its entirety with effect from 1 January 2023, and will in future, according to its marginal note, be included in the provisions on the remuneration report (Art. 734 et seq. revOR). However, there is no dogmatic or even thematic connection between regulations governing the remuneration of management and those governing gender benchmarks. The only commonality is that they both serve the realisation of socio-political desires: in the former, the prevention of "rip-offs" by management, in the latter, the creation of "equality" in management. The Federal Council has justified the legal-systematic link to the remuneration report on the grounds that this would avoid the establishment of a new instrument in company law. Although for reasons of dogmatic-systematic "purity" it would have been preferable to include the provisions on gender benchmarks in the provisions on the composition of the board of directors (Art. 707 et seq. CO), the Federal Council's pragmatic argumentation is certainly in keeping with the Swiss penchant for practicability.
B. General Character of the Norm
1. Mandatory Norm
17 Art. 734f CO is mandatory law. Although this is not readily apparent from the wording of the provision, the interpretation, in particular in view of the purpose of the provision, does not reasonably allow for any other conclusion. If the company were able to waive the provisions on gender standards, for example in its articles of association, the intention of the legislator would be reduced to absurdity. Legal policy concerns of all kinds that are elevated to the status of law must, as a rule, be of a mandatory nature. The "degree of compulsion" of Art. 734f CO is, however, reduced due to the special legal nature of this norm.
2. Lex specialis
18 Art. 734f CO is a lex specialis. This characterisation is of course not very meaningful as long as it is not explained to what extent the scope of application of this lex specialis extends and what its relationship is to the lex generalis. The rule "lex specialis derogat legi generali" is a purely formal and therefore not very productive rule, which only gains significance through the interpretation of the lex specialis, whereby above all teleology plays an important role. With regard to Art. 734f CO, the following can be said: If all the constituent elements of this norm are fulfilled, then it displaces (derogates) Art. 698 para. 2 no. 2 CO concerning the free right of the general meeting to elect the members of the board of directors and Art. 716b para. 1 CO concerning the power of the board of directors to freely select those persons to whom it intends to transfer the management. However, derogation only occurs to the extent of the scope of application of Art. 734f CO and the legal consequences ordered by this norm. Specifically: Since the legal consequence of Art. 734f CO - namely: obligation to give reasons - is not in irreconcilable conflict with the legal consequences of Art. 698 para. 2 no. 2 CO or Art. 716b para. 1 CO - namely: legal effectiveness of the act of election or transfer - these legal consequences are not superseded by that legal consequence. Although Art. 734f CO is a lex specialis vis-à-vis these two provisions, its scope of application is limited and its legal consequences are only added to those ordered by these leges generales without displacing (derogating) them.
3. Atypical comply-or-explain rule
a. Norm-theoretical classification; typical and atypical norms
19 If a company does not meet the benchmarks pursuant to Art. 734f CO, it must explain in the remuneration report the reasons why the gender is not represented in the board of directors or in the executive board in the proportion provided for in this provision and what measures it intends to take to promote this gender. In contrast to other countries - such as Germany or Norway - there is no binding quota in Switzerland, the violation of which would result in "severe" legal sanctions (such as nullity of the election act or even a fine). The legal consequence is rather the obligation to justify "norm-compliant" behaviour. This technical legal method is called "comply or explain". Due to this obligation to give reasons, Art. 734f CO is not a lex imperfecta (a norm whose violation does not provide for a legal consequence); an actual lex minus quam perfecta (a norm whose violation does not result in the nullity of the legal act, but does result in a sanction) is also unlikely to exist. Ultimately, Art. 734f CO is somewhere in the middle.
20 The comply-or-explain technique originates from the Anglo-Saxon legal sphere. In Switzerland it is mainly used in self-regulation (cf. e.g. Art. 7 DCG and the preamble of the Swiss Code); however, it was foreign to the Code of Obligations - at least until Art. 734f CO came into force. A comply-or-explain provision is characterised by a reduction of its normative effect (its degree of binding force, its "degree of compulsion") compared to "ordinary" norms. It allows the norm addressee to evade the "command" of the law by justifying non-compliance. This regulatory technique thus creates leeway for the objectively appropriate coverage of special cases (discretion) and thus also increases the (political) acceptance of the provision - which is not to be neglected, especially in the case of such strongly socio-politically motivated provisions as Art. 734f CO.
21 In the light of these considerations, however, Art. 734f CO proves to be an atypical form of a comply-or-explain provision. In its typical, "pure" form, a comply-or-explain provision first states a duty in its facts ("if") and then determines in its legal consequence ("then") how the breach of this duty is to be justified. Art. 734f CO deviates from this scheme insofar as, strictly speaking, there is no duty in the facts: A duty in the sense of a minimum quota for a certain gender ratio does not exist from the outset (the wording does not even speak of a "guideline value", although the Federal Council's message uses this term on various occasions). Consequently, the law does not require any exculpation on the part of society in the case of "non-compliance", but only a justification for the underrepresentation of gender. The view expressed in the doctrine that "explain" cannot be a substitute for "comply" in view of the purpose of Art. 734f CO and thus anchors a real duty to observe the benchmark in the law fails to recognise the atypical character of this norm, according to the view represented here. While it is undoubtedly true that the legislator wanted to promote gender equality with Art. 734f CO, it deliberately chose (also in the sense of a political compromise) the atypical variant of the comply-or-explain technique. This fundamental decision of the legislator may not be pushed aside with a mere reference to the (supposed) purpose of the norm.
b. Criticism of the comply-or-explain concept
22 In the absence of the threat of "severe" (civil, let alone criminal) sanctions, the effect of the comply-or-explain concept has been called into question in the doctrine on various occasions. It is true that companies are free to decide whether or not they want to comply with the benchmarks provided for in Art. 734f CO; they are not "compulsory quotas". However, they are compulsory with regard to the reporting obligation. The resulting (essentially correct) conclusion that Art. 734f CO is most likely a transparency provision must, however, be tempered. For reasons of reputation and "political correctness", a de facto or social or economic compulsion to "voluntarily" comply with the gender guidelines will probably arise. The legislator has left it to the self-regulatory power of the capital markets to exert a disciplinary or even sanctioning effect on the companies concerned. However, this effect can only occur if Art. 734f CO is accepted by the participants of the capital market and can therefore be enforced - which, in view of the omnipresent ESG trend, can be assumed at least among the relevant institutional investors. Furthermore, Art. 734f CO should also have a self-disciplining effect on the boards of directors of listed companies, as they are required by law to deal with "gender policy" on a regular basis. "Out of sight, out of mind - this will no longer be possible in the future." Against the background of these considerations, Art. 734f CO should certainly prove to be a suitable instrument for promoting the cause of gender equality, without unduly restricting the leeway of companies that is necessary in economic practice.
IV. Facts
A. Personal scope of application
1. Personal and spatial scope of application
a. Incorporation in Switzerland; stock exchange listing; double threshold value
23 Because of the principle of incorporation, Art. 734f CO applies first of all only to companies with their registered office in Switzerland (cf. Art. 154 para. 1 IPRG, furthermore Art. 640 CO). Then the personal scope of Art. 734f CO is limited on the one hand by Art. 732 para. 1 revOR and on the other hand - by virtue of the reference in Art. 734f CO - by Art. 727 para. 1 item 2 CO. Art. 732 para. 1 revOR stipulates that the provisions of the fourth section (which includes Art. 734f CO) apply to companies whose shares are (at least partially) listed on a stock exchange. Art. 727 para. 1 subpara. 2 CO stipulates three different thresholds (a. balance sheet total of CHF 20 million; b. turnover of CHF 40 million; c. 250 full-time employees on an annual average) and requires at least two of these thresholds to be exceeded in two consecutive business years for the company to be obliged to undergo an ordinary audit. Art. 734f CO therefore only applies if these requirements are met. In summary, Art. 734f CO only applies to domestic listed companies with a certain economic significance. The norm does not apply to companies established in accordance with Art. 763 CO (companies and institutions established by special cantonal laws and administered with the participation of public authorities) or which have only participation certificates, dividend-right certificates or bonds listed on the stock exchange (see also Art. 732 para. 1 revOR e contrario). However, it is irrelevant whether the domestic company has had its shares listed in Switzerland or abroad, whether its shares have restricted transferability or whether they are bearer or registered shares.
24 The legislator has deliberately limited the personal scope of Art. 734f CO compared to the general scope of Art. 732 ff. CO by basing it on the additional criterion of economic significance. The Federal Council argued that smaller listed companies, especially those not listed on the Main Standard of the SIX Exchange, should not fall within the scope of Art. 734f CO. In the literature, this limitation is considered sensible. The owners and employees of such small and medium-sized enterprises (SMEs) are often connected through personal and family relationships. Gender guidelines are not always compatible with the personalistic structures of these companies.
25 However, there has been criticism in the doctrine that Art. 734f CO only applies to listed companies. While the economic significance of the company determined on the basis of the threshold values of Art. 727 Para. 1 No. 2 CO is a factual criterion in the interest of protecting SMEs, it is questionable with regard to the principle of "substance over form" why non-listed companies are exempt from the scope of Art. 734f CO, especially since the vast majority of companies here are not listed. The legal form of a company should not be the decisive factor; rather, the economic significance of a company should be the only decisive factor, irrespective of its legal form. Although this criticism is not without some justification, the criteria of the legal form of the public limited company and the stock exchange listing at least ensure that only the very largest Swiss companies are affected by Art. 734f CO. The norm is therefore deliberately very targeted.
b. "Opt-in
26 Although unlisted public limited companies do not fall within the scope of Art. 734f CO, they may, according to Art. 732, para. 2 revOR, declare the provisions of the fourth section to be partially or fully applicable by means of a provision in their articles of association (so-called opt-in). Such companies may therefore declare Art. 734f CO to be applicable to them. The opt-in requires a basis in the articles of association according to an express statutory order; dogmatically, this opt-in is thus a so-called conditionally necessary content of the articles of association. These are provisions that require inclusion in the articles of association in order to be binding (cf. Art. 627 CO). A non-listed public limited company may therefore declare Art. 734f CO to be applicable. It may also amend the content of this provision, although this does not follow directly from Art. 732 para. 2 revOR. It could be argued that "in part or in full" can only mean that a company declares some or all of the provisions of the fourth section to be applicable and has no power to "cherry-pick", but the argumentum a fortiori speaks against this view: Instead of opting in, companies could simply include freely drafted clauses on gender guidelines concerning the board of directors in their articles of association, as was permissible under previous law and continues to be permissible - albeit only to a limited extent for listed companies.
2. Personal and material scope of application
27 According to the wording of Art. 734f CO ("[s]ofern"), it only applies to companies that do not meet the gender benchmarks set out therein. In other words, all companies that reach these benchmarks do not have to include the information required therein (justification and promotion measures) in their remuneration report; by law, they do not even have to state in it that they reach the gender benchmarks. Art. 734f CO simply does not apply to these companies. However, such companies are at liberty to make a statement on this issue, for example to promote their reputation.
3. Addressees of the norm
28 The question of the addressees of Art. 734f CO must be distinguished from the personal scope of application. The wording of the provision provides clear information on this question: it concerns the board of directors and the management of those companies that fall within the personal scope of Art. 734f CO. The board of directors is the highest executive body regulated in Art. 707 ff. CO. The board of directors is the highest executive body of the company. The executive board consists of the third parties to whom the board of directors has delegated the management in whole or in part pursuant to Art. 716b para. 1 CO. These "third parties" are also referred to as directors (cf. art. 718 para. 2 CO), and several of them together form the "executive board". The inclusion of the executive board in the circle of norm addressees of Art. 734f CO goes beyond the "international consensus" and is in this respect a Swiss specificity ("Swiss finish"). This is probably due to the fact that the proportion of women on management boards is generally still far lower than on boards of directors.
B. Level and assessment of the benchmarks
1. Level
29 The benchmark for the board of directors is 30 per cent, that for the executive board - in contrast to the preliminary draft 2014 - only 20 per cent. According to the Federal Council, the reason for the difference in the benchmarks is that, on the one hand, particular specific expertise and industry knowledge is required in the executive board and, on the other hand, (future) members of the executive board are often promoted within the company and, on average, are only promoted to this position after about 13 years. A differentiation between the board of directors and the executive board, which is also reflected in the different transition periods, is therefore justified. In combination with the ten-year transition period, the lower guideline value of 20 percent is intended to ensure the flexibility of corporate personnel policy and its diversity (industry knowledge, professional experience, international background, etc.). Finally, since membership of the executive board - unlike membership of the board of directors - is generally a full-time occupation, the time available to candidates also plays a role.
2. Basis of assessment; calculation
30 Art. 734f CO does not define the concept of gender. Implicitly, however, the provision undoubtedly assumes the duality of the sexes (men and women) that underlies the applicable law. A logical thought experiment supports this assumption: if one were to assume a number of genders greater than 3 or 5, percentages of 30 or 20 would make it impossible to meet the benchmarks (with four or six different genders, the sum would be 120 percent - a mathematical impossibility). If the number of genders may not exceed 3 or 5, it would be arbitrary and therefore lacking in logic to assume a lower number (but more than 2). The spirit of the age, however, goes in a different direction and demands that a person may profess a third gender. Two postulates adopted by the National Council also correspond to this demand. The Federal Council's report on this is still pending. If a change in the legal system to this effect were to occur in the future, there would probably also be a need to amend Art. 734f CO - possibly even before the transitional periods expire!
31 It should therefore be noted: De lege lata, Art. 734f CO is based on the duality of the sexes. The decisive factor for the assignment to the male or female gender is the gender entered in the civil register (cf. Art. 8 lit. d ZStV). The Federal Council submitted a draft amendment to the CC to Parliament at the end of 2019, which was elevated to the status of law by the Federal Assembly in resolutions of 18 December 2020. The provision entered into force on 1 January 2022. According to Art. 30b para. 1 CC, any person may declare to the civil registrar that he or she wishes to have the entry in the civil register concerning his or her gender changed. However, this new provision does not change the duality of the sexes or the unambiguity of the assignment to one of the two sexes under civil status law; it merely brings about a legal simplification of the change of sex.
32 Finally, the question of rounding when calculating the gender reference values requires explanation. If, for example, the board of directors of a company consists of seven members, the standard value according to Art. 734f CO requires that 2.1 members each should be male and female. From a mathematical point of view, it is not far-fetched to round this quota down to 2. German law, for example, provides for rounding according to mathematical rules (rounding down to and including decimal place 4, rounding up from decimal place 5) (see § 96 para. 2 sentence 5 AktG concerning the supervisory board). However, such a solution is to be rejected for the law here. From the word "at least" in Art. 734f CO it follows that the percentage guideline value is to be reached in any case; in other words, in the sense of "minimum values", it is always to be rounded up to the next whole number of persons (1, 2, 3, etc.). In the above example, the benchmark would only be reached if and when the board has three women.
3. Practical implementation
33 Finally, the question arises as to how Art. 734f CO should be implemented in practice. Basically, the company has two options: They can either increase the number of members of their boards of directors and executive boards (which in the former case would generally require an amendment to the articles of association) and fill the newly created positions with members of the underrepresented sex (i.e. as a rule with women), or they can replace (mostly male) members who have left the board with (female) members without increasing the number of members. At this point, however, it is important to remember that the company does not have to comply with the guidelines of Art. 734f CO at all (there is no obligation to "comply"); instead, it can decide to take the path of reporting ("explain").
C. Temporal scope of application (transitional period)
34 Art. 4 OBest. CO provides for transitional periods for the application of Art. 734f CO. The reporting obligation applies with respect to the board of directors at the latest as of the business year that begins five years after the new company law enters into force (para. 1), and with respect to the executive board at the latest as of the business year that begins ten years thereafter (para. 2). Art. 734f CO and Art. 4 ÜBest. CO have entered into force with effect from 1 January 2021 (in contrast to most other new provisions of company law). The longer transitional period for the executive board serves to provide sufficient time for the company's internal talent recruiting (from which its members often emerge).
35 As a rule, the financial year coincides with the calendar year (although this is not mandatory). For most companies, Art. 734f CO should therefore be applicable with respect to the board of directors as of 1 January 2026 and with respect to the executive board as of 1 January 2031. The word "at the latest" in Art. 4 ÜBest. OR proves to be misleading: the law states that a norm is either applicable or not applicable. The word "at the latest" must be understood to mean that the legislator wanted to give companies the option of complying with the reporting obligation earlier.
V. Legal consequences
A. Comply or explain
36 While Art. 734f CO is a quite usual legal norm with regard to the facts, a deviation from the usual norm structure can be observed with regard to the legal consequences. It has already been explained and should be recalled again here that the fulfilment of the facts of Art. 734f CO does not result in the nullity of an electoral act or any other "severe" sanction (such as a fine) (as is peculiar to most legal norms), but only has the effect that the company must report on certain aspects. This unusual type of legal consequence is referred to, in keeping with the spirit of the times, by the English expression "comply or explain".
B. Duty to report
1. Vessel for the report: remuneration report
37 Although quite doubtful from a dogmatic-systematic point of view, the legislator has chosen the compensation report as the "vessel" for the report required under Art. 734f CO for pragmatic reasons. Pursuant to Art. 13 para. 1 VegüV (as of 1 January 2023: Art. 734 para. 1 revOR), the remuneration report is prepared by the board of directors; it is a non-transferable and inalienable duty of the board of directors (Art. 13 para. 1 VegüV; as of 1 January 2023: Art. 716a para. 1 item 8 revOR). The board of directors may not delegate this duty to an individual member of the board, to a committee from among its members, to the executive board or to anyone else. However, it may delegate the preparation, execution and supervision of the preparation of the report to individual members of the board or to a committee; in all cases, however, the board of directors in corpore must retain the responsibility for the adoption of the report.
2. Content and density of the report
38 Pursuant to Art. 734f CO, the remuneration report must provide information (report content) on the reasons why the genders are not represented in the board of directors or in the executive board in the proportion provided for by this provision (para. 1) and on the measures taken to promote the less strongly represented gender (para. 2). The specific reasons for under-representation are likely to vary considerably from one sector and company to another, and it is not uncommon for the board of directors itself to have difficulty in clearly identifying these reasons. With regard to the promotion measures, the law does not provide the board of directors with any requirements as to content (what?), manner (how?) and extent (how much?), and the legal objective (promotion) also lacks any claim to binding force, since the law does not require the board of directors to actually take promotion measures - rather, it merely instructs it to report on whether and which measures it intends to take. The board of directors is therefore to be granted considerable, almost unrestricted discretion with regard to both aspects.
39 Art. 734f CO is silent on the substantive requirements of the justification and incentive measures that the remuneration report must meet (report density). In the consultation on the preliminary draft 2014, the fear was expressed that the justifications required from the companies pursuant to Art. 734f CO would be highly standardised (so-called "boilerplate") and would therefore (at least to a large extent) be devoid of any meaningfulness. These concerns cannot be dismissed out of hand. In the search for suitable indications for determining the required reporting density, one can profitably refer to the SIX Directive on Information Relating to Corporate Governance, especially since this Directive, as can be seen from its preamble, is committed to the comply-or-explain concept. According to Art. 5 para. 1 of this Directive, key information must follow the principles of materiality and clarity; it must be limited to what is essential for investors and be relevant and understandable. These terms are all too vague to be able to infer concrete "instructions" as to content, especially since the Directive, as an act of private self-regulation, lacks any general legally binding force. Nevertheless, the outward, formal form of the report will have to comply with these principles: The content of the report must be formulated in such a way that the average capital market participant is able to understand it (clarity), and the report must also not be "flooded" with such a wealth of information that this participant no longer sees "the wood for the trees" (materiality). The remuneration report, of which this report is an integral part, must be written in one of the Swiss national languages (German, French, Italian or Romansh) or in English in analogous application of art. 958d par. 4.
40 With regard to the breadth and depth of detail, Art. 734f CO leaves the board of directors largely free to design the report, and the provision also does not prevent standardised statements. An exemplary company that is internally committed to the objective of Art. 734f CO (or merely opportunistic for reputational reasons) could provide full details of the recruitment processes and the candidates that were available for selection, as well as measures already taken and planned to promote the underrepresented gender. In business practice, however, the standardised statements already mentioned seem much more likely than this ideal. A company could also fundamentally oppose the objective underlying Art. 734f CO and, for example, simply state in the report that its shareholders oppose the participation of one gender in its management and that the company will consequently not take any promotion measures in favour of that gender. The only thing prohibited by Art. 734f CO is complete silence on the part of the company. In other words, Art. 734f CO instructs companies to speak out at all, but does not impose any requirements on them in terms of content. The (formal) requirement of materiality is also to be understood only in a negative sense, i.e. that the remuneration report may not contain an excess of information.
41 The opinion found in the literature, according to which general and sweeping statements are not compatible with Art. 734f CO, must be rejected. First of all, the law does not require that companies (or their shareholders and management) internally share the goals of the legislator. The law obliges them to comply with it alone, without regard to subjective motives. Even fundamental opposition to the legislative goal is therefore permitted, as long as only the legal mandate to report is complied with. Furthermore, the law does not impose any requirements on the companies regarding the content of the report. It is entirely up to the board of directors to determine how and to what extent it wishes to identify the reasons for the under-representation of one gender and to put them into words in the report, and it is also entirely up to the board of directors to determine the company's policy on gender diversity. Finally, the view that general or sweeping statements are absolutely inadmissible also misses the point of economic reality, whose natural inclination is to increase efficiency and in which a tendency towards standardised statements will consequently be unavoidable.
3. Audit by the auditors
42 Art. 17 VegüV (as of 1 January 2023: Art. 728a para. 1 item 4 revOR) provides that the remuneration report of companies whose shares are listed on the stock exchange is subject to audit by the auditors. Consequently, all companies that are obliged to report in accordance with Art. 734f CO fall within the scope of Art. 17 VegüV or Art. 728a para. 1 item 4 revOR. By inserting the latter provision, Art. 17 VegüV has been incorporated into the law without any material changes, which is why reference can be made to the literature on Art. 17 VegüV for its interpretation. Pursuant to Art. 728a Para. 1 No. 4 revOR, the standard of review will be the law and the company's articles of association. The question now arises as to whether and to what extent the auditors must subject the remuneration report to an audit with regard to compliance with Art. 734f CO. The obvious problem: the extremely sparse content requirements of the law for the "diversity report", the resulting considerable discretion of the board of directors and the question of the suitability of the auditors to audit this report.
43 In order for legal provisions to be suitable as a benchmark for the audit at all, they must, in accordance with the nature of the audit, have a reference to accounting (bookkeeping, annual financial statements, proposal for the appropriation of profits) or to the remuneration of the board of directors, executive board and advisory board. In other words, it is about "figures". On the other hand, the audit is not a "general legality audit". Art. 734f CO has no substantive connection with the remuneration of the management, even though the provision, systematically-dogmatically questionable, is classified in the legal provisions on remuneration. Moreover, personnel policy is not a matter of accounting or remuneration, but of management, which is expressly excluded from the audit by the auditors by Art. 728a para. 3 CO. Therefore, as far as the appointment of the executive board by the board of directors is concerned, Art. 728a para. 3 CO also precludes an audit of the remuneration report by the auditors with regard to Art. 734f CO. This must apply all the more a fortiori to the election of the board of directors by the general meeting - which is, after all, the supreme body of the company (Art. 698 para. 1 CO).
44 It must therefore be noted: If the auditors prepare to audit the remuneration report, they must exercise the greatest restraint. The Swiss Chamber of Certified Accountants and Tax Experts - the professional association of those who are professionally involved in auditing - already came to this conclusion during the consultation on the preliminary draft in 2014. The individual opinion to the contrary found in the literature has no support in the law and must therefore be rejected. The auditors may not agree with the board of directors' reasoning, but they are certainly not entitled to substitute their assessment for that of the board of directors. Intervention by the auditors is only conceivable and legally justifiable in one single case (although it seems justifiable to disagree on this point as well): namely, if the board of directors does not comment at all on Art. 734f CO in the remuneration report, even though the company does not comply with the benchmarks provided for therein (which - it should be recalled - it is not obliged to do). The auditors must point out obvious violations of the law even if they are outside their audit mandate. Such a violation of the law is likely to occur if the board of directors of a company that does not meet the benchmarks set out in Art. 734f CO remains completely silent in the remuneration report. However, the auditors' "measure" is likely to be limited to a mere reference in the audit report to the remuneration report; a recommendation by the auditors to the general meeting is not required, as the remuneration report does not require its approval. Finally, it is conceivable that a complete silence of the board of directors triggers the auditor's duty of disclosure pursuant to Art. 728c CO, in particular vis-à-vis the general meeting (para. 2) - vis-à-vis the board of directors (para. 1) it will hardly be of importance, since the latter is itself the author of the violation of the law. Admittedly, this is likely to remain a rather theoretical consideration.
VI. Enforcement
A. Instruments of the shareholder
1. Overview
45 If the auditors are neither suited nor entitled to monitor compliance with the board of directors' reporting obligations, then this task can only fall to the company's shareholders. This "monitoring" can be done from two sides: on the one hand, by obtaining information, on the other hand, by imposing liability. Against this background, the instrument of the right to information and inspection (N. 46 f.) and that of liability under company law (N. 48 ff.) will be discussed below, whereby the explanations will be limited to the essential prerequisites with regard to the interest of knowledge. It should first be noted that the first instrument in particular has undergone some changes in the course of the amendment to the Companies Act of 2020; in contrast to the previous law, there is no longer any difference de lege lata between the right to information and the right to inspection in terms of the substantive requirements.
2. Right to information and inspection
46 Art. 697 para. 4 and Art. 697a para. 3 revOR will set a double limit to the shareholder's right to information or inspection: On the one hand, the information or the inspection must be necessary for the exercise of the shareholder's rights; thus, there must be a factual connection between the information to which the request for information or inspection relates and the exercise of the shareholder's membership rights. As a rule, such a connection exists if the information is necessary for the exercise of voting rights in elections. The company's personnel policy may be the subject of a request. A shareholder who wishes to have both sexes represented on the board of directors and in the management of "his" company in the proportion provided for by Art. 734f CO has an interest in receiving information on the recruitment processes within the company, on the criteria for selecting candidates and on the promotion measures planned and already taken by the board of directors. Either he wants to elect or not elect certain members of the board of directors on the occasion of the general meeting in the knowledge of this information, or he wants to indirectly influence the composition of the executive board through this election or non-election. The factual connection required by law should therefore generally be given.
47 Secondly, the information or inspection must not endanger any business secrets or other interests of the company that are worthy of protection. The reason for this danger is the shareholders' lack of fiduciary duty towards the company. Therefore, a balancing of the company's interest in secrecy and the shareholder's interest in information is required in each individual case. However, secrecy obligations that are contractually imposed on the company are not subject to consideration from the outset. Since recruitment processes always involve individual people who are thoroughly "screened" in the course of these processes, especially when filling management positions, the general right of personality (Art. 28 of the Civil Code) is also likely to draw a line. Candidates may also want to protect themselves contractually from having information about them disclosed. Apart from these cases, the assessment of the top management may be of such importance that it justifies a rejection of the request, also with regard to the shareholder's interest in information. A way out could be to make the information anonymous, but in this case it would be questionable what value it would still have. As a result, it must be noted that the company will have to carefully weigh the conflicting interests with regard to the specific individual case. Nevertheless, the shareholder's interest is likely to prevail as a rule as far as general information (i.e. not related to specific persons) is concerned, for example with regard to the company's gender policy and its promotion measures.
3. Liability under company law
48 Liability of the board of directors under company law pursuant to Art. 754 para. 1 CO first requires a breach of duty. The duty of care (Art. 717 para. 1 CO) requires members of the board of directors to be law-abiding, especially in the case of mandatory standards. Art. 734f CO is mandatory law. If the board of directors remains completely silent with regard to Art. 734f CO, it commits a breach of duty. A breach of duty also occurs if the content of the remuneration report does not correspond to the truth; active lying is not compatible with the duty of care. A breach of duty, on the other hand, is excluded in the absence of content requirements if the board of directors merely makes use of general or standardised statements in the remuneration report or even expresses its fundamental rejection of the gender guidelines.
49 Liability under company law then requires damage. If the breach of duty comes to the attention of the public and the stock market price of the share falls as a result of the impaired reputation, this could be seen as damage. However, in the absence of an adverse effect on the company's assets, this does not constitute a (direct) damage to the company, nor are the shareholders entitled to damages, since they are not entitled to a high stock exchange price and Art. 717 para. 1 CO does not have the character of a protective norm in this respect. A direct damage to the shareholder is at least conceivable if his investment decision is based on an untrue statement regarding the gender benchmarks in the remuneration report and the shareholder resells his shares acquired as a result of the board of directors' breach of duty at a lower price. In this case, the shareholder is likely to have a claim against the members of the board of directors under Art. 41 CO. In conjunction with Art. 717 para. 1 CO, Art. 734f CO has a protective normative effect in this respect.
50 There must be a natural and adequate causal connection between the breach of duty and the damage. The (directly injured) shareholder must succeed in proving that his investment decision is connected with the board of directors' untrue statement on gender guidelines in the remuneration report. The assumption that the "gender policy" in the management of a company is not likely to be material for the formation of the will of most investors (in contrast to professional experience, for example) is not far-fetched, so that this proof will only rarely be successful. Nevertheless, it is not impossible, especially since in times of ESG "diversity" issues are gaining more and more weight.
B. Claim to "attitude"?
51 It is at least conceivable that a candidate who was not considered for appointment to the board of directors or the executive board would have a claim for "recruitment" (or more precisely: for the creation of a relationship with a governing body). Such a claim must be rejected. It would completely ignore the object and purpose of Art. 734f CO. This norm is based on the idea of transparency and does not provide for any "hard" legal consequences in the event of the realisation of its facts, but only for a duty to state reasons. A fortiori, it would be utterly absurd to want to construct a claim of the kind described here that could be enforced by legal action. Even Art. 5 para. 2 GlG excludes a legal claim of the discriminated person for employment in the case of a refusal of employment or in the case of termination of an employment relationship according to the Code of Obligations and only grants this person a claim for monetary compensation.
Materials
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