Modernisation of the Commercial Register Ordinance
Commercial register fees will be around one third lower as a result of the revision. The register block will be abolished, as there has been a certain duplication since the introduction of the CCP and the precautionary measures provided by it. Furthermore, authorised persons will also be able to file applications for a legal entity in the future. You will find out below why the possibility of granting power of attorney is likely to miss the intended target.
"Unfortunately, it cannot be assumed that more people with specialist knowledge will be involved in the registration of commercial register transactions in the future"
Numerous provisions of the Commercial Register Ordinance are transferred to the Code of Obligations, which leads to a streamlining and limitation of the Ordinance to implementing provisions. The reason for the adjustments is that the provisions on the commercial register in the Code of Obligations have not been comprehensively revised since 1937. These regulations no longer meet the needs of today's users, which is why the modernisation is appropriate.
The new provisions will come into force on 1 January 2021. Through the new central database to be created, natural persons can be identified throughout Switzerland in the future. For this reason, the provisions on the central database on individuals already entered into force a few days ago on 1 April 2020. Until now, due to the decentralised storage of the personal data received in the respective cantonal commercial registry offices, it was not possible to obtain an overview for the whole of Switzerland of which natural person is entered in the commercial register in which function and with which signing authority at which legal entities. The identification of natural persons is now systematically carried out via the AHV insurance number. The EHRA is responsible for the granting of rights, data protection and data security of this database(Art. 14a HRegV).
Furthermore, the following amendments were adopted:
The persons admitted to file an application are expanded. For example, in the case of legal entities, it is no longer only the members of the supreme governing or administrative body who are entitled to file an application, but any person authorised to sign for the legal entity concerned in accordance with his or her authority to sign or an authorised third party (e.g. lawyer). The authorisation of a third person must be signed by one or more members of the supreme governing body in accordance with the authority to sign and must be enclosed with the application (Art. 17 para. 3 nHRegV).
The cost recovery and equivalence principle now also applies to fees of the commercial register. Overall, the revision will reduce the fees by about one third. It is predicted that the reduction will relieve the economy by CHF 14 million p.a. and that it will still be possible for the cantons to cover the majority of the costs of the commercial registry offices with the fee income.
The so-called "Stampa declaration" is abolished as a separate document and the declaration is now to be recorded in the public deed.
The blocking of the register pursuant to Art. 162 and 163 HRegV is lifted. Since the entry into force of the CCP, legal protection has been guaranteed by Art. 262 lit. c CCP. According to this provision, register authorities (such as the Commercial Register Office) may be ordered as a precautionary measure to perform a certain act or entry or to refrain from doing so for the time being. These precautionary measures can also be ordered on a super-provisional basis, which is why the special-law register block is no longer needed. This will relieve the commercial registry authorities, which will no longer have to deal with sometimes delicate issues such as the scope of the block, valid consequence and chain blocks. In future, this will be the direct task of the court.
A legal basis is created for the practice already practised today by the commercial register offices, according to which incorrect entries are corrected and supplements are recorded for incomplete entries. The respective daily register entry must be marked accordingly.
If bearer shares are issued for the first time, evidence of the listing of the equity securities on a stock exchange or of their intermediated nature must be submitted.
The paraphrase of the purpose shall be taken over unchanged from the articles or the foundation deed for registration. The discretion of the commercial register to abbreviate shall be omitted in order to ensure a uniform presentation of the commercial register extracts.
Pursuant to Art. 936 para. 2 NOR, the entries, articles of association and foundation deeds must be made accessible on the internet free of charge. This means, for example, that in the event of a transfer of the registered office outside the canton, the previous articles no longer have to be submitted.
In the case of mergers and demergers, the commercial registry offices involved from other cantons are now only informed of the entries by the examining commercial registry office. Applications and certified copies of the supporting documents no longer have to be transmitted.
Legal protection for rulings by the commercial registry offices is now found in the Code of Obligations.
Critical remarks
On the possibility of authorising third parties: In practice, if a lawyer or notary is authorised, the lawyer or notary may sign the application, but the client must still send an original signed power of attorney by post, because this must also be submitted to the Commercial Register Office in the original (Art. 20 para. 1 HRegV is not affected by the revision). This means that the client can be sent the application prepared by the lawyer electronically (as was previously the case), which is then printed out, signed and returned by post. In our opinion, the requirement to submit the power of attorney will largely fail to achieve the intended simplification.
Addendum of 21.12.20: According to the Practice Note EHRA 4/20, 3.1.3, published by the EHRA on 10 December 2020, the power of attorney is not a document within the meaning of Art. 20 HRegV, which is why it can be submitted as a (simple) copy.
Furthermore, in its explanatory report on the opening of the consultation procedure (p. 19), the Confederation expects that the quality of the applications will increase due to the possibility of authorisation, because the applications will now increasingly be filed by persons with specialist knowledge (probably meaning lawyers, among others), which should lead to a reduction in the examination effort and thus the costs. In our opinion, this prognosis ignores the fact that there are no obvious reasons why laypersons, who have not sought advice from specialists in the past, should do so in the future. It is unlikely to have been the case so far that the remaining documents were prepared by specialists and the application for the commercial register was not, which is why it can be assumed that the quality of the applications is likely to remain unchanged.
Already today, certain registrations and supporting documents are available electronically in some cantons. The fact that all cantons are now obliged to make entries, statutes and foundation deeds available on the internet is, in our opinion, to be welcomed. When publishing further documents, data protection law in particular must be taken into account, not that private addresses or copies of identity documents etc. are made accessible to the general public.
Balthasar Wicki or Sebastian Wälti will be happy to answer any questions you may have on the registration of commercial register transactions or the revised Commercial Register Ordinance.