Swiss Corporate Law Changes: End of Bearer Shares?

Author:Mr David Kohler, Artem Faekov and Stephen S. Kho
Profession:Akin Gump Strauss Hauer & Feld LLP
 
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Key points

Since 2015, acquirers of Swiss non-listed bearer shares must report their name and address to the company within one month of the acquisition. The ultimate beneficial owner of an interest of 25 per cent or more has to be reported. The company has the obligation to keep a register of bearer shareholders and of the beneficial owners. According to the Global Forum on Transparency and Exchange of Information for Tax Purposes (the "Global Forum"), these obligations are not sufficient to identify holders of bearer shares. On 17 January 2018, the Federal Council launched a consultation on the recommendations of the Global Forum. The bill suggests abolishing bearer shares and introducing criminal fines in case of breaches of the new obligations. In addition, all Swiss companies would be obliged to have a Swiss bank account. The new rules, if accepted, are scheduled to enter into force in 2019. The Background of the Proposed Rules

Under international pressure, in 2014 the Swiss Parliament adopted the Federal Act Implementing the Revised Financial Action Task Force (FATF) Recommendations of 2012. FATF introduced new reporting obligations of acquirers of bearer shares: any acquirer must give notice of the acquisition, together with the acquirer's name and address to the company within one month. In addition, any person who alone or by agreement with third parties acquires shares and reaches or exceeds the threshold of 25 per cent of the share capital or votes has the duty to report the ultimate beneficial owner of the acquirer to the company.

The company has the duty to keep a register of bearer shareholders and of the beneficial owners notified to the company. If a shareholder fails to comply with its obligations, the membership rights conferred by the shares are suspended.

These changes, that entered into effect on 1 July 2015, were considered insufficient: on 26 July 2016, the Global Forum published a phase 2 peer review report on Switzerland. Even though Switzerland was graded as largely compliant, the report contains various recommendations, in particular regarding the transparency of legal entities and the exchange of information.

On 17 January 2018, the Federal Council launched a consultation on the recommendations of the Global Forum. The bill proposes converting bearer shares into registered shares and a system of sanctions to be applied if shareholders do not comply with their duty to report beneficial owners or if companies...

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