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KMU-Magazin No. 11/12, November/December 2022 Legal innovations for 2023

Each new year, countless new or amended laws and regulations come into force. Finding one's way through the jungle of these standards is becoming more and more of a challenge. This article summarizes the most important changes that will come into force in Switzerland in 2023.

New stock corporation law

After a political process lasting several years, the new law will come into force on January 1, 2023. The new law provides for more flexibility for companies. Companies limited by shares (AG) and limited liability companies (GmbH) may now also issue their share capital in euros, US dollars, British pounds or Japanese yen, provided that this is the currency essential for their business activities. In this case, this capital must correspond to the equivalent of at least CHF 100,000 (or CHF 20,000 in the case of a GmbH) at the time of creation and the bookkeeping and accounting must be done in the foreign currency. The nominal value of the shares and ordinary shares can now be less than 1 centime, but must be above zero.

In the future, stock corporations will be able to create a capital band. This allows the board of directors to increase or reduce the share capital for a maximum of five years by up to 50 percent. The general meeting must include a corresponding article in the articles of incorporation. However, the minimum capital of stock corporations may not fall below the limit of CHF 100,000.

Flexibilities created during the Corona pandemic in the Covid-19 Ordinance are now being incorporated into the Code of Obligations (CO). For example, electronic means are now permissible for holding the general meeting. The Board of Directors may allow shareholders to exercise more flexibility. Shareholders who are not present at the location of the general meeting may exercise their rights electronically. A general meeting may also be held by purely electronic means ("virtually") if the articles of incorporation so provide. These new possibilities represent welcome advancement for AGs, GmbHs and cooperatives.

Finally, the revision also strengthens minority shareholder rights in stock corporations and explicitly allows arbitration clauses in the respective articles of incorporation for the adjudication of corporate law disputes in stock corporations and limited liability companies.

New inheritance law

The new law, already approved by Parliament at the end of 2020, will be in force as of January 1, 2023. It applies to all deaths that occur on or after January 1, 2023. The new inheritance law is more flexible than before. With the revision, the compulsory portion for direct descendants of the deceased is reduced to half, while the compulsory portion for parents is eliminated altogether. For married couples in the process of divorce, the protection of the compulsory portion will now cease as soon as the divorce proceedings are initiated and no longer only with the final divorce decree. In the case of cohabitation, however, there is still no statutory right of inheritance. For further information on the new inheritance law, please refer to the article "Extended freedom of disposal for testators" in "KMU Magazin" No. 9, September 2021 by Dr. iur. Markus Kaufmann and Andrea Meule.

Changes in the Land Register Ordinance

The revised land register ordinance obliges land registry offices to systematically use the AHV number to identify persons. This will simplify the verification of real property and any associated rights (Art. 949b and 949c CC). Furthermore, Switzerland will in the future operate a national property search service. This will receive search requests from authorized authorities, forward them to the cantonal land registry systems via a coded channel and communicate the search results to the requesting authorities.

Money Laundering Revisions

The revision provides for measures for financial intermediaries in the areas of economic eligibility, up-to-dateness of client data and suspicion of money laundering. In addition, it promotes the transparency of associations with increased risk in the area of terrorist financing and strengthens supervision and controls in the area of precious metals. The Federal Council issues implementing regulations in various ordinances. The new law contains provisions, among others, on the reporting system, on the introduction of a control mechanism for the purchase of precious metals and on the new task of the Central Office for Precious Metals Control as a money laundering supervisory authority.

An exemption from the obligation to register in the commercial register is provided for smaller associations. Under certain conditions, it is also possible to protect travelling board members from being entered into the commercial register. Finally, the obligations in the event of suspected money laundering will no longer be set out in ordinances of the supervisory authorities, but will be regulated by the Federal Council.

Change in tax law

With the implementation of the parliamentary initiative Markwalder, the parliament has amended Art. 33 para. 3 DBG so that the proven costs for third-party care of children up to a maximum of CHF 25,000 per child and year (instead of CHF 10,100 as before) can be deducted from the income for direct federal tax.

In addition, Parliament has raised the turnover limit up to which non-profit, volunteer-run sports and cultural associations and charitable institutions are exempt from VAT from CHF 150,000 to CHF 250,000.

Compensation for adoption leave

Employed persons who adopt a child under the age of four are entitled to two weeks' adoption leave, which is compensated under the Income Compensation Ordinance (EO). At the time of adoption, the claimant must be employed or self-employed; must have been insured with the AHV for the nine months prior to taking in the child; and must have been gainfully employed for at least five months during this period. The leave days must be taken within the first year of the child's adoption, and the compensation amounts to 80 percent of the average income from gainful employment, up to a maximum of CHF 196 per day.

New data protection law

After many heated discussions, the new Swiss Data Protection Act (DPA) will now enter into force on September 1, 2023. This means that there is still some time left for businesses to make all the necessary adjustments.

With the total revision, the DPA is adapted to the changing technological and social conditions. The new legal provisions increase the transparency of data processing and strengthen the self-determination of individuals over their data.

This total revision of the DPA is very important for Switzerland as a business location. Among other things, it ensures that Swiss data protection law remains compatible with European law and is a prerequisite for the EU to continue to recognize Switzerland as having “third country” status with an adequate level of data protection.

Only data of natural persons is affected by the revised Data Protection Act, the protection of legal persons is omitted. Genetic and bio- metric data are now included in the definition of data requiring special protection, and the principles of data protection and data security have been amended. "Privacy by Design" and "Privacy by Default" will be introduced. If there is a high risk to the personality or fundamental rights of the individual, impact assessments must be carried out in the future. In addition, obligations of data processors will generally be expanded and a directory of processing activities will become mandatory for them.

However, the Ordinance to the Act provides for an exemption for SMEs under certain conditions. Finally, the term "profiling" (the automated processing of personal data) finds its way into the law. For further information, please refer to the article "What the new data protection law means for SMEs" in "KMU Magazin" No. 4/5, April/May 2021 referred to by Dr. iur. Irma Ambauen and Andrea Meule.

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