In June 2020, the modernized Swiss company law (“grosse Aktienrechtsrevision”) was adopted after years of parliamentary discussion. The revision includes updated rules with respect to management compensation for listed companies that will be covered in the first part of this legal update. Furthermore, the Swiss Confederation adopted new rules on the disclosure of non-financial matters as well as minerals and metals from conflict areas and child labor. These are discussed in the second part of this legal update.
Amended remuneration disclosure obligations
Following the “Minder” constitutional initiative, the ordinance against excessive remuneration in listed companies (“Ordinance on Excessive Remuneration“) entered into force in January 2014. These provisions will now be transposed into the revised Code of Obligations (“Revised Code” or “nCO“). Although the provisions that were previously set out in the Ordinance on Excessive Remuneration largely remain unchanged and the existing disclosure obligations in the annual compensation report therefore continue to apply, there are certain relevant amendments. These include the amended disclosure obligations in the annual compensation report that are set out below.
Compensation to former members of management – prohibition of non-market compensation for former mandates (Art. 734a, para 1, sub 4 and 735c subs 3 nCO)
The Revised Code will require disclosure of all compensation paid by the company directly or indirectly to former members of the board of directors, the executive management and the advisory board, insofar as they are related to their former activities as a member of these corporate bodies. The new rule adjusts the scope of the Ordinance on Excessive Remuneration that previously also required the disclosure of all non-market compensations to former members of corporate bodies. The background of this change is that such non-market remunerations in connection with former mandates become inadmissible under the new law (Art. 735c subs 3 nCO).
Benefits from occupational pension plans are still exempt from the disclosure requirements relating to former members.
Non-compete arrangements (Art. 734a, para 2, sub 10 nCO)
The Revised Code clarifies that any compensation paid in connection with non-compete clauses qualifies as remuneration. If these compensations were paid during the relevant period, they must therefore be disclosed in the compensation report.
Disclosure of functions of all board members in other companies (Art. 734e nCO)
The compensation report will have to specify any other functions of members of the board of directors, the executive management and the advisory board, to the extent that it concerns comparable functions exercised at other for-profit companies. This disclosure is to be made in the compensation report and is not necessarily congruent with the disclosures under the SIX Directive on Information relating to Corporate Governance (DGC). While the compensation report disclosure must include all mandates with comparable functions at other for-profit companies, regardless of their significance, the disclosure under the DCG extends to all (a) activities in governing and supervisory bodies of important Swiss and foreign organizations, (b) permanent management and consultancy functions for important Swiss and foreign interest groups and (c) official functions and political posts.
The amended remuneration disclosure obligations will apply as of 1 January 2023.
New non-financial reporting duties (Art. 964a – 964l CO)
The new Swiss rules on non-financial reporting apply if the company, cumulatively, (i) is a “company of public interest” pursuant to Art. 2(c) of the Swiss Audit Oversight Act (listed companies and prudentially supervised financial institutions requiring audits by a licensed auditor), (ii) is an important employer on a consolidated basis (>500 full-time positions) and (iii) reaches a substantial size in terms of balance sheet assets (>CHF 20 million) or revenues (>CHF 40 million) on a consolidated basis. The new rules provide for the duty to report on areas such as environment, social issues, labor issues, human rights aspects and the fight against corruption. If the company controls other domestic or foreign companies, the report must also include these companies. The report must also contain a description of the company’s business model, the concepts and due diligence procedures used, the measures used regarding non-financial aspects and their respective effectiveness, a description of the main risks and the relevant performance indicators, all in connection with the areas listed above. The report may be based on a national, European or international reporting framework, such as the standards of the Global Reporting Initiative.
Additionally, the new rules provide for certain due diligence and transparency obligations regarding conflict minerals and child labor. These rules apply to companies with their registered office, head office or principal place of business in Switzerland that import certain minerals from conflict and high-risk areas and process them in Switzerland, or whose products or services are suspected of being manufactured or provided by the use of child labor. The Swiss Federal Council has laid out the relevant definitions, exceptions and restrictions regarding this duty in its ordinance on Due Diligence and Transparency in the Areas of Minerals and Metals from Conflict Zones and Child Labor (VSoTr). The Council has further specified the details for the reporting on climate issues in line with the new rules in a separate draft ordinance. This draft ordinance is currently being revised following the completed consultation procedure that ended on 7 July 2022 and will enter into force on 1 January 2023 at the earliest.
Compliance with these new rules and requirements requires significant preparations as well as preliminary considerations. Non-compliance can result in companies and individuals facing fines of up to CHF 100,000. Companies that may fall within the scope of the rules should first check whether they themselves are in fact required to follow the relevant reporting and/or due diligence requirements or if other companies in the scope exist within the group context. If they are subjected to reporting obligations, the companies should perform a detailed analysis as to what rules they need to follow and as to what changes they are required to make to their existing reporting procedures. For more details on the non-financial reporting rules, see our Client Alert of April 2022.
The new rules on the disclosure of non-financial matters as well as minerals and metals from conflict areas and child labor came into force on 1 January 2022. The reporting obligations apply for the first time in the first financial year beginning after 1 January 2022. Since the fiscal year and calendar year often coincide, the first fiscal year (after 1 January 2022) would for many companies begin on 1 January 2023. This then would be the first fiscal year for which the relevant reporting requirements are applicable. Consequently, the relevant reporting for fiscal year 2023 occurs for the first time in the first semester of 2024 for likely most of the in-scope companies.