After the passing of the Corporate Law Reform, the dates of entry into force are now known for specific parts of the new legislation. This concerns the regulations on gender quota guidelines for the board of directors and executive management as well as the transparency rules for companies that are active in the exploitation of commodities. Due to the different transitional provisions, the latter require, an imminent implementation of the new reporting obligations.
Adoption of Corporate Law Reform
On 19 June 2020, corporate law reform finally passed the final vote in parliament. The objectives of the revision are, among other things, the expansion of contemporary corporate governance regulations, a more flexible and simpler structure of the provisions on incorporation and capital adjustments as well as the alignment of corporate law with the new accounting legislation. The corporate law reform also includes the transfer of the Ordinance against Excessive Remuneration of Listed Companies (“VegüV”), which came into force on 1 January 2014, into the existing statutory framework, as well as the introduction of new transparency regulations for economically significant companies active in the exploitation of commodities.
New provision on gender quota guidelines
In the amended Swiss Code of Obligations (CO) – integrated in the transferred provisions of the previous VegüV – a new provision on guidelines for minimum quota for gender representation on the board of directors and executive management is introduced. This provision only applies to listed companies that also exceed two of the following thresholds: Balance sheet total of CHF 20 million; turnover CHF 40 million or 250 full-time employees on an annual average.
The new provision stipulates that in listed companies meeting the above-mentioned requirements, each gender must be represented at least by 30% on the board of directors and by 20% in the executive management (Art. 734f nCO). However, these quotas are regarded as guidelines and not as an enforceable legal requirement: Accordingly, non-compliance does not entail any sanctions. The so-called comply-or-explain approach applies instead: In the event of non-compliance, the companies concerned must explain in the compensation report the reasons why both genders are not represented as intended and indicate the measures intended to promote the under-represented gender . Companies not complying with these guidelines must publicly justify themselves, but are not otherwise exposed to legal consequences.
Also, the transition periods for this provision is set out very generously. Art. 4 of the Transitional Provisions stipulates that the reporting obligation for the guideline in case of non-compliance shall only apply from the financial year beginning five years after the new law comes into force for the board of directors. For the executive management, this even applies only from the financial year that begins ten years after the new provisions come into force.
The Federal Council decided on 11 September 2020 that the new provision will enter into force on 1 January 2021. Listed companies concerned will therefore only have to comply with the reporting obligations from the financial years beginning in 2026 or 2031. For the time being, the new provision will therefore remain mainly programmatic in nature.
Transparency regulations for commodity companies
The new transparency regulations for companies exploiting commodities will also come into force on 1 January 2021. According to these, companies that are required to carry out an ordinary audit pursuant to Art. 727 para. 1 CO and that are active themselves or through a company controlled by them in the exploitation of minerals, oil or natural gas or the exploitation of timber in primary forests must draw up an annual report on payments to state authorities or government officials.
By law, the extraction of commodities includes all corporate activities in the field of exploration, prospecting, discovery, development and production of minerals, oil and gas deposits and the harvesting of timber in primary forests. According to the accompanying report of the Federal Council, it is irrelevant whether the exploitation of commodities is explicitly mentioned in the statutory purpose of the company. Nor does such exploitation have to be the exclusive or main activity of the company. A one-time (e.g. project-based) activity in the field of commodity exploitation is sufficient.
It should also be noted that the activities of controlled group companies in the exploitation of commodities are also covered by the personal scope of the provisions. However, if companies are required to file consolidated financial statements, only one report has to be prepared, which in each case covers all companies concerned. Companies which do not have to prepare their own report must indicate in which company’s report they are included (art. 964a para. 3 nCO).
The report must provide information on all payments made to public authorities of at least CHF 100,000 in connection with the exploitation of commodities. The term “payment” is defined quite broadly (Art. 964b nOR). It includes, e.g., user fees, signing, discovery and production bonuses, license, rental and access fees or other considerations for permits or concessions, as well as payments for the improvement of infrastructure.
The transparency regulations – unlike those relating to the gender quota guidelines – are already applicable starting from the financial year that begins one year after the provisions comes into force. This means that from the financial years beginning in 2022 for the companies concerned, respective reports must already be drawn up and published. The preparation and drafting of these reports will therefore require action in the near future.