ESTABLISHING A COMPANY IN SWITZERLAND


I. OVERVIEW
 

In Switzerland a company can be established in the form of a corporation (Aktiengesellschaft) or a limited liability company (LLC; Gesellschaft mit beschränkter Haftung); for a comparison of the two forms, see Forms of Business in Switzerland. A company does not need a license to do business in Switzerland, except in circumstances where the carrying on of a certain business is subject to licensing requirements, e.g., in the case of banks, insurance companies, railways, airlines, etc.

The shareholders of a Swiss company do not need to be Swiss citizens or Swiss companies, nor do they need to have special qualifications. However, the majority of the members of the board of directors of a Swiss corporation (unlike the managing officers of an LLC) must be Swiss citizens or citizens of a member state of the EU or the EFTA and must be domiciled in Switzerland.

 

II. REQUIREMENTS FOR THE ESTABLISHMENT OF A CORPORATION
 

The formation of a corporation requires the following:

  • Incorporators: three persons or entities must act as incorporators and initial shareholders; they need not be Swiss citizens or residents. The incorporators may, by notarized power of attorney, appoint one or more proxies to form the corporation on their behalf; accordingly, their presence in Switzerland is not required. If the power of attorney is notarized outside Switzerland, it must be accompanied by a so-called "Apostille" under the Hague Convention or be superlegalized by a Swiss embassy or consulate certifying the capacity of the foreign notary.

  • Capital: a corporation must have a share capital of at least CHF 100,000, of which at least 20 per cent or CHF 50'000, whichever is higher, must be paid in on the date of the incorporators' meeting.

  • Articles of Incorporation: the incorporators must adopt written articles of incorporation which set forth the name, domicile, purpose, share capital, par value and type of shares, transfer restrictions (if any) and the basic organization of the corporation.

  • Board of Directors: The majority of the members of the board of directors of a Swiss corporation (unlike the managing officers of an LLC) must be Swiss citizens or citizens of a member state of the EU or the EFTA and must be domiciled in Switzerland.

  • Auditors: the incorporators must appoint one or more auditors. At least one auditor must have its domicile in Switzerland.

  • Domicile: the corporation must have a domicile in Switzerland. It may have either its own offices or a c/o address, in which case a third party acts as domicile holder for the corporation.

It is not a requirement that the corporation have officers, i.e., persons other than directors. The board of directors, however, may decide to appoint such officers and may determine their signatory powers.

 

III. INCORPORATION PROCEDURE
 

The procedure to incorporate a corporation is divided into three phases:

1. Incorporators' Meeting
 

The incorporators' meeting must be held before a Swiss notary public; however, as noted, the incorporators may appoint a proxy for such a meeting.

At the meeting the incorporators adopt the articles of incorporation and elect the members of the board of directors and the auditors. All these resolutions must be embodied in a notarized deed of incorporation. This deed of incorporation confirms that the incorporators (i) have subscribed for all shares and (ii) have made their contributions to the share capital.

If (i) contributions to the share capital are made in kind (by contributing assets other than cash), (ii) the subscribed share capital is paid in by setting off claims against the corporation, (iii) the corporation intends following its formation to acquire assets with the subscription proceeds (intended acquisition of property), or (iv) special benefits are conferred on the incorporators, the incorporators must further render a written report on the above-mentioned contributions or acquisitions. This incorporators' report must provide information on (i) the type and condition of the assets to be contributed or to be acquired and the reasonableness of the valuation of such assets, (ii) the existence of a debt that may be set off, or (iii) the reasons for special rights in favor of incorporators or other persons and the reasonableness of such rights. The incorporators' report must be reviewed by an auditor who must certify in writing that such report is complete and accurate.

2. Registration in the Commercial Register
 

After the incorporators' meeting, an application for registration of the corporation must be filed with the Office of the Commercial Register at the corporation's domicile. This application sets forth the essential information relating to the corporation, information that will also be published in the Commercial Register (see para. 3 below), and must be accompanied by the following documents: (i) the notarized deed of incorporation, (ii) a certified copy of the articles of incorporation, (iii) declarations of acceptance from the initial board members and auditors, (iv) a confirmation by a Swiss bank that the initial share capital has been paid-in, (v) a board resolution concerning the constitution of the board of directors and, if so decided, the appointment of officers, and (vi) certain other declarations relating to Swiss or foreign beneficial ownership of the corporation as well as the contributions made to the share capital.

The application must be signed by all the persons authorized to act on behalf of the corporation, i.e., by those members of the board - and, if appointed, those officers - who have signatory power for the corporation. The signatures of all these persons must be notarized and, if notarized outside Switzerland, be accompanied by an "Apostille" under the Hague Convention or be superlegalized by a Swiss embassy or consulate certifying the capacity of the foreign notary.

3. Registration in the Commercial Register
 

The corporation becomes a legal entity only upon its registration in the Commercial Register. Notice of the registration is published in the Swiss Official Gazette of Commerce. The information that is so published includes

  • the date of the incorporators' meeting
  • the corporate name and domicile of the corporation
  • the purpose and duration of the corporation
  • the amount of the share capital and the amount paid in
  • the contributions in kind or other property received in payment of shares
  • the type and par value of the shares as well as transfer restrictions, if any
  • special rights granted to the incorporators, if any
  • names, residence and citizenship of the directors and officers of the corporation
  • name and domicile of the auditors
  • the manner in which official announcements are to be made by the corporation.

The entire incorporation process normally takes approximately two to three weeks from the date of the incorporators' meeting, but may be shortened to around three to five business days upon consultation with the Office of the Commercial Register.

4. Post-Incorporation Matters
 

Share certificates may be only issued upon registration of the corporation in the Commercial Register; certificates issued before such date are null and void.

Following its incorporation, the corporation must pay a one time stamp tax. This initial stamp tax is assessed at the rate of 1% of the entire consideration paid or contributed to the corporation's equity. If shares are issued at a premium, the 1% stamp duty is due on the nominal capital plus the premium. No stamp duty is due on the first CHF 250,000 share capital.

 

IV. ESTABLISHMENT OF AN LLC
 

The incorporation of an LLC requires two persons or legal entities acting as incorporators and initial quota holders. By and large, incorporation procedures for LLCs are the same as for corporations; however, the rules for special incorporations are less stringent than is the case for corporations.

Source:
Homburger Rechtsanwälte
Zurich, Switzerland
October 2003