Swiss bearer shares, no longer

On 21 June 2019 the Federal Assembly adopted the Federal Act (the Act) implementing the recommendations of the Global Forum on Transparency and Exchange of Information for Tax Purposes. The Act has consequences for each Swiss company that has outstanding bearer shares or is still able to issue bearer shares.

Previously, on 1 July 2015, the Federal Act on the implementation of the 2012 revised recommendations of the Financial Action Task Form had come into force (the 2015 Act). This piece of legislation aimed to intensify the fight against money laundering in Switzerland.

Consequently, everybody acquiring bearer shares in a Swiss company had to report the acquisition to the company in question, within a one-month deadline. If bearer shares were obtained, either alone or with someone else, and reached the threshold of 25% of the share capital or the voting rights, the identity of the ultimate beneficial owners of the bearer shares to the company had to be disclosed. Not doing so would lead to the loss of voting- and dividend rights for as long as the reporting had not taken place. The right to dividend would be lost for the period in which the reporting had not taken place.

Swiss companies had to maintain a register of holders of bearer shares and ensure access in Switzerland for a period of 10 years. Switzerland is now taking a further step in the fight against money laundering.

The ACT – What you need to know

Most importantly, the issuance and use of bearer shares by Swiss companies will become impossible.

Bearer shares can no longer be issued after 1 January 2020

As of 1 January 2020, Swiss companies that so far were able to issue bearer shares under their articles of association will no longer be able to do so. Any company able to issue bearer shares should arrange to amend their articles of association during the transition period leading up to 1 July 2022. If not done by this deadline, any other changes to the articles of association will be rejected by the commercial register.
At the time of amendment, the issued bearer shares will also be converted into registered shares.

Bearer shares will be converted automatically on 1 July 2022

If the issued bearer shares have not been converted timely, they will be converted into registered shares by operation of law on 1 July 2022. All other particulars regarding the shares (e.g. nominal value and voting rights) will remain as they were.
The company having issued the bearer shares will be required to register the holders of the bearer shares in its shareholders register.

The exceptions to the rule

The consequences of the Act do not apply to companies that have securities listed on a stock exchange or have issued intermediated securities. It should be noted, however, that such companies should inform the commercial register accordingly before 1 July 2022.

Strict sanctions regime to be put in place

Any holders of bearer shares that have not complied with their information duties in relation to the company before 1 July 2022 will no longer be able to make use of their voting and financial rights attached to the shares. In effect, their financial rights are lost.

After 1 July 2022, a shareholder that has not provided the company with the required information can no longer be registered in the company’s shareholders register. Such shareholder must, with the prior consent of the company, apply for registration to court within five years after the entry into force of the Act. Failure to do so will lead to the shares in question becoming null and void; they will be replaced by treasury shares. For clarity sake, the information duties under the 2015 Act will remain applicable. Unless the company is listed, the natural person must be disclosed to the company within three months after said person becomes the ultimate beneficial owner.

New is that the (intentional) failure to comply with the Act may lead to fines of the persons concerned, including the members of the board. In addition, interested parties may sue the company.

Timing

To prevent any unwanted consequences, action should be taken before 1 January 2020. If not done so, the final deadline of 1 July 2022 must be respected. Lack of timely action will potentially lead to adverse consequences to Swiss companies.

Next steps

Reviewing current set-ups with the aim of determining any potential action points is key. It must be assessed whether the articles of association of your Swiss company must be amended. Also, transaction documents may require updating (e.g. pledges).

How can we help?

We are on hand to help review Swiss establishments, and co-ordinate with legal advisors. Contact one of our experts to find out more.