New Corporate Law: Simplification in Signing of Commercial Register Applications (no. 17)

26 October 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.
 

Modernization of the Commercial Register

On January 1, 2021, a revision of the law under the title "Modernization of the Commercial Register" already came into force, in the course of which the Commercial Register Ordinance was also amended. The revised Commercial Register Ordinance has in principle expanded the group of persons authorized to sign commercial register applications on behalf of a company. Whereas under the old law only members of the highest governing bodies were allowed to sign the application, all persons authorized to sign for the company in accordance with their signing authority as well as third parties authorized by the company may now sign the commercial register applications. However, the new regulation stipulates that differing legal provisions take precedence. The company law still in force until the end of this year provides for numerous such exceptions according to which members of the highest governing bodies or other bodies are responsible for the application to the Commercial Register, which is why the change as of January 1, 2021 did not have the practical effect that was hoped for. With the revised company law, which will come into force on January 1, 2023, this legal competence of the members of the highest governing bodies will be repealed to a significant extent, so that the principle already introduced on January 1, 2021, will now also bring comprehensive simplifications in practice.

Simplification Regarding the Commercial Register Application

Thanks to this revision, numerous applications to the Commercial Register no longer have to be signed by members of the highest governing bodies (board of directors in the case of a limited company (Ltd, Aktiengesellschaft), management in the case of a limited liability company (LLC, GmbH), and board of directors in the case of a cooperative). This applies to the registration of an ordinary capital increase of a limited company or limited liability company, the capital increase out of conditional capital of a limited company, the registration or deletion of persons authorized to sign for the company, as well as the dissolution of the company. In the future, commercial register applications in these cases can be signed by other persons registered in the Commercial Register with signing authority (e.g. directors, registered attorneys [Prokurist]) or even by authorized third parties (fiduciary, lawyers, notaries, etc.).

To illustrate: A limited company wants to update personnel changes in the Commercial Register. The departure of a member of the board of directors, a new residence of a member of the board of directors, the appointment of three new authorized signatories and the departure of two registered attorneys are to be registered. The board of directors has validly resolved and recorded all of these changes. Previously, the commercial register application had to be signed by (typically) two members of the board of directors. Now it is conceivable, for example, that a member of the human resources department and a member of the legal department - provided that both are entered in the Commercial Register with signing authority - sign the application. Or another example: A limited company increases its share capital. The notary who notarizes this process is authorized by the board of directors to sign the commercial register application. This, too, will now be possible.

Remaining Exceptions

Despite these simplifications, several applications remain which must be signed by the highest governing body, the liquidators or the partners of a company. In addition to the applications of a general partnership or limited partnership, this concerns in particular the waiver of a limited audit (opting-out), the registration of liquidators and the deletion of the company from the Commercial Register. The applications of mergers, demergers, transformations and asset transfers under the Merger Act (Fusionsgesetz) must also continue to be made by the highest governing bodies, and in the case of foundations and pension funds mainly by the respective supervisory authority.

Conclusion

The new regulation will simplify dealings with the Commercial Register in many areas. Nevertheless, numerous cases must be considered in which the law deviates from this new rule.

Your VISCHER team will be happy to provide you with specific solutions tailored to your needs and to answer any questions you may have.

Other articles in the series:

• New Corporate Law: New Swiss company law to come into force on 1 January 2023 (no. 1)
• New Corporate Law: General meeting under the new company law – what is changing? (no. 2)
• New Corporate Law: The capital band (no. 3)
• New Corporate Law: Loss of capital, over-indebtedness and (in)ability to pay (no. 4)
• New Corporate Law: Important resolutions (no. 5)
• New Corporate Law: Capital increase and capital reduction (no. 6)
• New Corporate Law: The (intended) acquisition of assets (no. 7) 
• New Corporate Law: The offsetting contribution (no. 8)
• New Corporate Law: The Interim Dividend (no. 9)
• New Corporate Law: The Return of Benefits (no. 10)
• New Corporate Law: Share capital in foreign currency (no. 11)
• New Corporate Law: Simplified rules on reserves (no. 12)
• New Corporate Law: Representation of the shareholders in the new company law (no. 13)
• New Corporate Law: Relevant changes from a tax perspective (no. 14)
• New Corporate Law: Right to Information & Inspection and Special Investigation (no. 15)
• New Corporate Law: Arbitration Clause in the Articles of Association (no. 16)
• New Corporate Law: The Board of Directors (no. 18)
• New Company Law: Circular Resolutions of the Board of Directors (no. 19)
• New Corporate Law: Commercial Register Application by an Authorized Third Party (no. 20)

Authors: Roland M. Müller, Christoph A. Enz