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9 December 2022
The new company law, which comes into force on 1 January 2023, brings many changes. In our current blog series, we present these in detail.
With the revision of the commercial register law as of January 1, 2021, the circle of persons authorized to sign commercial register applications has been expanded: whereas prior to the revision two members of the highest governing body of a company or a member with individual signing authority had to sign commercial register applications, under the new law one or more persons authorized to sign for the company in accordance with their signing authority or an authorized third party can file the application in most cases. Although these simplifications are to be welcomed, they will only take full effect with the revision of the company law, which will come into force on January 1, 2023, thereby significantly increasing the number of possible cases in which this expanded circle of authorized signatories can sign commercial register applications.
This article details the requirements for commercial register applications by an authorized third party, notably the prerequisites for the power of attorney. In particular, fiduciaries, attorneys-at-law and notaries are suitable as authorized third parties. For example, as of January 1, 2023, the notary public who has notarized a capital increase can be tasked with the application, or an attorney can be authorized to file personnel changes of a company with the commercial register.
The Swiss Code of Obligations does not prescribe any special form for a power of attorney. In principle, it does not have to be in writing and therefore does not have to be signed by hand. A power of attorney could therefore also be issued as a PDF by means of an electronic signature. However, for the power of attorney regarding commercial register applications, it must be noted that the competent commercial register compares the signatures on the power of attorney with the handwritten signature of the principals which are deposited with the commercial register (see below). Therefore, a hand-signed power of attorney is factually required.
Furthermore, the power of attorney must be signed by one or more members of the highest governing body in accordance with their signing authority, so that a "full signature" is achieved. The power of attorney can therefore be signed, for example, by one member with single signature authority or by two members with collective signature at two. The signatures of the members of the highest governing body (the principals) do not have to be legalized - in comparison to German law, for example - because these were already legalized at the time the principals were registered in the commercial register as members of the board (in the case of a corporation limited by shares or cooperative) or managing directors (in the case of a limited liability company) and the authenticity of the signature on the power of attorney is verified by comparison with the signature deposited. Similarly, the signature of the authorized third party on the commercial register application does not need to be legalized, as it is legitimized by presenting the power of attorney. However, the commercial register may demand a legalization if there is any doubt as to the authenticity of the signatures.
The power of attorney must be drafted as a separate document and may not be integrated in the articles of association or in any minutes. Accordingly, it would be impermissible if, in the case of a capital increase, the power of attorney is granted to the notary public as part of the publicly notarized board resolution on the implementation of the capital increase ("Feststellungsbeschluss"). With regard to the content of the power of attorney, it must be clear that the third party is authorized to represent the company in commercial register matters.
The power of attorney must be enclosed with the commercial register application. According to the Swiss Federal Commercial Registry Office ("EHRA"), a copy is sufficient. The original does not have to be submitted. However, a copy of the power of attorney must be submitted again with each commercial register application, even if it was already enclosed with an earlier application. When filing an application with the commercial register, it is therefore imperative to ensure that a time-limited power of attorney is still valid, unless the power of attorney is valid indefinitely until revoked. As an enclosure to the commercial register application, the power of attorney is subject to the principle of publicity and can therefore be viewed by anyone free of charge on the internet portal of the respective commercial register office. It may therefore be necessary to ensure that the power of attorney only relates to commercial register matters so that other powers of the authorized third party do not become public.
The presented changes in the commercial register law combined with the simplifications regarding commercial register applications that will come into force on January 1, 2023 (see Blog no. 17) of this blog series) open up new possibilities for the highest governing body of a company to delegate the filings and thus provide for administrative relief. The authorization of a third party is a viable alternative to the filing by a person authorized to sign for the company, especially if a large number of authorized signatories reside abroad or in the case of recurring filings, for example in the event of frequent personnel mutations.
Your VISCHER team will be happy to provide you with specific solutions tailored to your needs and to answer any questions you may have.
Author: Christoph A. Enz
Categories: Corporate and Commercial, Civil Law Notaries, Blog
Attorney at Law
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