1. The general trend: simplifications and facilitations

The year 2020 was not easy, and because of the Covid-19 pandemic, for many  it was exceedingly difficult. We hope that this overview of new Swiss laws will make it easier for you to navigate 2021.This article does not contain all the changes in the law, but only the most important ones. We would also like to emphasize that this is not an in-depth legal commentary. Much has been simplified in order to provide the reader with an initial overview and to facilitate understanding.

2. Mandatory Paternity Leave: Are you about to become a father? Congratulations! We have good news!

Teamwork makes the dream work! Accordingly, the new Art. 329g of the Swiss Code of Obligations (CO) enables new fathers to give better support to new mothers after the birth of the new world citizen. Now, employees, who are the legal father of a child at the time of its birth (or who become the legal father within the following six months), are entitled to two weeks  paternity leave. This must be used within six months of the child’s birth. It can be claimed on a weekly or daily basis.

In order to ensure that families can afford paternity leave, there is an entitlement to a paternity allowance corresponding to 80% of the average earned income before the birth, up to a maximum of CHF 196 per day (Art. 16l of the Federal Law on Income Compensation, EOG). The daily allowance is paid to employees, self-employed individuals and, under certain circumstances, even to persons who are not gainfully employed.

For additional information see: https://www.ahv-iv.ch/p/6.04.e

3. There goes the inheritance! Supplementary benefits are now borrowed happiness!

According to Art. 111 para 1 of the Federal Constitution of the Swiss Confederation (BV),the Confederation will take measures to ensure adequate financial provision for the elderly, surviving spouses and children, and persons with disabilities. For this purpose, there are three pillars, namely the Federal Old-age, Survivors' and Disability Insurance (first pillar), the occupational pension scheme(second pillar) and private pension schemes (third pillar). The first pillar also includes supplementary benefits. Such support measures are not part of social assistance.

The federal government and the cantons pay supplementary benefits to persons whose subsistence needs are not covered by old-age, survivors' and disability insurance benefits (Art. 112a BV). Supplementary benefits are thus intended to provide a safety net for those who do not have sufficient retirement income or assets. They are also paid out relatively early, because—in principal—even homeowners can claim supplementary benefits (Art. 9a para. 2 of the Federal Law on Supplementary Benefits, ELG). Thus the state does not require pensioners to first sell their generations-old family home, for example, and use up the proceeds before they can claim supplementary benefits from the state. So far, this sounds quite social.

Less social is the new Art. 16a ELG, according to which rightfully received supplementary benefits must be refunded from the estate after the death of the recipient. However, the refund is only to be made from that part of the estate that exceeds the amount of 40,000 Swiss francs. In the case of married couples, the heirs are only obliged to make restitution from the estate of the second deceased, i.e. once both spouses have passed away.

If, for example, the parents had to draw supplementary benefits for decades, the children or heirs may be forced to sell the family home after their parent's passing in order to cover the refund claims for the supplementary benefits paid or even forced to reject the inheritance altogether.

This new legal change has certainly reduced the incentive to save for the next generation and encourages devil-may-care attitudes.

In this regard, the following report of the Swiss Broadcasting Corporation is worth watching (unfortunately only available in German): https://www.srf.ch/news/schweiz/neue-regelung-ab-2021-erben-muessen-fuer-ergaenzungsleistungen-von-verstorbenen-aufkommen, or for any further questions turn to info@swiss-law-solutions.com.

4. Taking leave for the care of relatives

Due to demographic developments in Switzerland, the legislator has decided to adapt the Code of Obligations as well as the social security laws to the new social reality in order to enable care by relatives. This will take place in two stages.

The first stage will begin on January 1, 2021, when employees will be entitled to paid leave for the time necessary to care for a family member or partner with a health impairment, thanks to the new Art. 329h of the Swiss Code of Obligations(CO). However, the leave may not exceed three days per event and ten days per year.

Also, according to Art. 29septies para. 1 of the Federal Law on Old-Age and Survivors' Insurance (AHVG), there is now the possibility of crediting a care credit in the Old-Age and Survivors' Insurance. In addition, intensive care supplements and helplessness allowances from the Disability Insurance are now paid during a child's hospital stay for at least one month. If the parents' presence is required beyond this month, the entitlement continues (Art. 42bis para. 4 of the Federal Law on Disability Insurance, IVG).  

In the second stage, from July 1, 2021, working parents will be entitled to 14 weeks leave to care for a seriously ill or injured child. This care leave must betaken within a framework period of 18 months (see the new Art. 329i CO). The care allowance is paid via the Income Compensation Scheme (EO) (Art. 16n-16s of the Federal Law on Income Compensation, EOG).

5. Overtaking on the right remains prohibited in 2021 (Art. 36 para 5 Traffic Regulation Ordinance, VRV)

With regard to passing on the right - i.e. not changing lanes to pass, the following has changed: Previously, passing on the right was only permitted in parallel column traffic, i.e. when a column formed on both lanes. From 2021,according to Art. 36 Para. 5 lit. a VRV, passing in the right lane is also permitted if a column forms only in the left or middle lane. The new regulation is illustrated in a Youtube video of the Federal Roads Office (ASTRA): https://www.youtube.com/watch?v=7Yoozxr_MVM

The zipper principle is now explicitly stated in the ordinance: If, on roads with several lanes in one direction, the continuous use of a lane is no longer possible or if a lane ends, motorists must, according to Art. 8 para. 5 VRV, allow the vehicles of the removed lane to turn in immediately before the beginning of the narrowing. This is intended to prevent vehicles from changing to the remaining lane too early in the event of lane reductions. Failure to do so will now result in an administrative fine. An illustration video from ASTRA can be found here: https://www.youtube.com/watch?v=i7U_MsNQGCA

Furthermore, if traffic is reduced to walking speed, there is now an obligation to form emergency lanes on freeways and freeways with at least two lanes in one direction, in accordance with Art. 36 Para. 7 VRV. This means that vehicles must form a free lane between the leftmost lane and the lane immediately to the right for police, ambulance, fire department, customs and emergency vehicles to pass through. Failure to observe the emergency lane obligation is punishable by an administrative fine. The following link underlines the necessity of this provision: https://www.20min.ch/story/topmanager-kommt-ohne-strafe-davon-172800522077.

Cyclists and moped riders are now allowed to turn right at traffic lights when the light is red, if the signal "Right turn for cyclists allowed" is displayed next to the red light (Art. 69a para. 1 Signalization Ordinance, SSV).

Previously, only kindergarteners were allowed to ride their bicycles on the sidewalk. Now, 12-year-olds are also allowed to use the sidewalk with their bicycles if there is no bike lane or bike path (Art. 41 para. 4 VRV).  

6. Registered mail can be received without signature

To receive a registered letter, it is no longer necessary to be present. It is now possible to issue an electronic delivery authorization, which replaces the signature. The registered item can then be placed directly in the mailbox or post office box (Art. 29 para. 4bis Postal Ordinance, VPG).

7. Strengthening gender representation in corporate management

Under the new Art. 734f of the Swiss Code of Obligations (CO), larger (as defined in Art. 727 para. 1 no. 2 CO) listed companies, must state in the compensation report the reasons for falling short of the gender quota and the corrective measures taken, unless each gender is represented by at least 30% on the board of directors and 20% in management.

8. Further restrictions on advertising calls

According to the new Art. 3 Para. 1 lit. u of the Federal Law Against Unfair Competition(UWG) advertising calls are now only permitted from numbers listed in the telephone directory, unless there is a notice stating that such advertising calls are unwanted. If the number of the call recipient is listed in the telephone directory with such a notification (this already applied previously) or, according to the new law, if the number is not at all listed in the telephone directory, then advertising calls are prohibited!

The advertising call must also be made from a telephone number that is displayed to the recipient, is listed in the telephone directory and which the caller is authorized to use (Art. 3 para. 1 lit. v UWG).

A violation of Art. 3 UWG is, on complaint, punishable by imprisonment of up to three years or a fine (Art. 23 para. 1 UWG).

9. The legislator turns the tables: The Swiss Federal Railway will have to pay for delays (Art. 21b Passenger Transportation Act)

For delays of more than one hour, the Swiss Federal Railway (SBB) will now have to refund25% of the ticket price. Starting from a delay of two hours, a rate of 50%applies. Season ticket holders are also entitled to compensation (Art. 61 Passenger Transportation Ordinance, VPB). This regulation has been adopted from EU law.

10. Modernization of the commercial register and revision of the Commercial Register Ordinance

With the revision of the commercial register law, the legislator has transferred numerous provisions from the Commercial Register Ordinance (HRegV) to the Swiss Code of Obligations (CO), which means that the ordinance is now limited to implementing provisions. The amendments also result in various simplifications, which will relieve the economy by approximately CHF 14 million per year. The most important changes are briefly listed below: 

a) Authorized representatives can now make applications to the Commercial Register (Art. 17 para. 1 lit. b und para. 3 HRegv)

b) Art. 27 HRegV now expressly regulates the correction of drafting and clerical errors.

c) Sole proprietorships, general partnerships, limited partnerships, associations and institutes under public law that have already been assigned a company identification number due to the VAT obligation must provide this number when applying to the Commercial Register (Art. 37 para. 2, Art. 40 para. 2, Art. 90 para. 3 and Art. 106 para.3 HRegV). These company forms can be called into existence even before registration in the Commercial Register. With this provision, the legislator wants to avoid that the Commercial Register Office by mistake assigns a new identification number.

d) The obligation to register sole proprietorships that generate sales of at least CHF 100,000 was deleted from the HRegV and transferred to the CO (Art. 931 CO).

e) The so-called Stampa declaration is used to record that there are no other contributions in kind, acquisitions in kind (including intended ones), offsetting items or special benefits other than those mentioned in the supporting documents. With the revision, the Stampa declaration is abolished as a separate document, respectively Art. 43para. 1 lit. h, Art. 46 para. 2 lit. g, Art. 54 para. 1 lit. f, Art. 66 para. 1lit. g, Art. 71 para. 1 lit. i, Art. 74 para. 2 lit. f, Art. 84 para. 1 lit. g HRegV have been abolished. This declaration must now be expressly stated in the deed of formation or capital increase (Art. 44 lit. g item 4, Art. 47para. 2 lit. e, Art. 54 para. 2 lit. e, Art. 67 lit. e item 4, Art. 72lit. e item 5, Art. 75 para. 2lit. f, Art. 85 lit. h HRegV).

f) Under previous law, the purpose statements for entry in the commercial register were sometimes shortened in practice. For the purpose of registration, the Commercial Register Office now takes the description of the purpose of the legal entity unchanged from the articles of association or the foundation deed (Art. 118 para. 2 HRegV).

g) The provisions on blocking the register (Art. 162 and Art. 163 HRegV) have been deleted. Under the previous law, it was possible to request the Commercial Register Office to block new entries without giving reasons. Such requests had to be complied with by the Commercial Registry Offices, and the requesting party had to prove the pursuit of its claims in a court of law to the competent Commercial Registry Office within ten days. Under the new law, litigants must now apply directly to the court, and the court then orders the blocking of the commercial register pursuant to Art. 262 lit. c of the Swiss Civil Procedure Code (CPC) as part of a superprovisional or provisional measure.

h) Art. 928b OR, Art. 14a and Art. 24af. HRegV created the basis for a central database for persons entered in the cantonal registers. For the identification of private individuals, the commercial register authorities systematically use the social security number(Art. 928c OR). However, the social security number is not made public (Art.936 para. 1 CO). Persons entered in the commercial register are assigned a non-descriptive personal number which is publicly accessible (Art. 928c para. 3 CO and Art. 119para. 1 lit. i HRegV). This personal number does not allow any conclusions regarding the social security number of the registered individual.

i) The provisions on ex officio registrations and there-registration of deleted legal entities (Art. 152 et seq. HRegV) have been standardized and simplified. Furthermore, the basic provisions are now outlined in the CO (Art. 934 et seq.).

j) Pursuant to Art. 936 para. 2 CO, it is now possible to obtain an insight into the articles of association and foundation deeds over the Internet free of charge, in addition to the entries.

k) The protection of good faith with regard to facts entered in the commercial register is expressly codified in Art. 936b para. 3 CO. However, this principle was already recognized by the legal doctrine before the revision.

l) According to Art. 29a HRegV, entries in the commercial register are recorded according to the character set of the ISO standard 8859-15.

m) The Ordinance on Fees was totally revised with the result that fees for the services of the Commercial Register Offices have been reduced by one third.  

11. Conversion of bearer shares and notification obligation of shareholders by April 30, 2021

In this context, we would also like to point out that from November 1, 2019,bearer shares have only been permissible if the corporation has listed equity securities on a stock exchange or has structured the bearer shares as intermediated securities within the meaning of the Federal Intermediated Securities Act (FISA). After the expiry of 18 months after the entry into force of Art. 622 para. 1bis CO, i.e. on May 1, 2021, inadmissible bearer shares will be converted into registered shares by law (Art. 4 para. 1 of the transitional provisions to the amendment of June 21, 2019). The Commercial Register Offices will then reject any application for entry of any other amendment to the articles of association in the Commercial Register as long as this adjustment regarding the conversion of bearer shares into registered shares has not been implemented in the articles of association.

Failure to amend the articles of association and convert bearer shares into registered shares may also have serious consequences for the shareholders themselves. According to Art. 697i of the Swiss Code of Obligations, since July 1, 2015 acquirers of bearer shares have been obliged to register with the company, subject to exceptions. Shareholders who do not comply with this notification obligation before the conversion of bearer shares into registered shares, i.e. by April 30, 2021, will meanwhile no longer be able to exercise their shareholder rights. Within five years after the entry into force of Article 622 paragraph 1bis CO—i.e. by November 1, 2024—these shareholders must, with the prior consent of the company, apply in court for their registration in the company's share register. 

The court will only approve the application if the shareholder proves his shareholder status (Art. 7 para. 1 of the transitional provisions to the amendment of June 21, 2019). Shareholders who have not applied for registration in the company's share register within the five-year period, i.e. by November 1, 2024, even lose their rights permanently (Art. 8 para. 1 of the transitional provisions to the amendment of June 21, 2019)!

For further questions, contact us directly at: info@swiss-law-solutions.com  

In the context of handling the conversion of bearer shares into registered shares, it is also advisable to check whether the share register and the list of beneficial owners are kept correctly, so that, among other things, the reporting and record-keeping obligations of Art. 327 and Art. 327a of the Swiss Criminal Code (StGB) are not violated.

12. New provision for the apportionment of legal costs in litigation concerning corporate law

Also worth mentioning is the new provision in Art. 107 para. 1bis CCP, according to which a court may, at its discretion, apportion the costs of proceedings between the company and the plaintiff in the event of dismissal of actions under company law which are for compensation to the company. This means that the company in whose favor the action is brought - but which is not a party to the proceedings - may have to bear the costs of the proceedings or part of them. The legislator's intention is to relieve a plaintiff of the fear of having to bear the costs of litigation. This intention of the legislator will have only limited effect and Art. 107 para. 1bis CCP remains an optional provision, the application of which is at the discretion of the court.

13. Total revision of the public procurement system

Public procurement in Switzerland is characterized by its interplay between provisions at the international, national, intercantonal and cantonal levels. This can make it difficult for the legal layman to gain an overview of the relevant provisions. Above all, it is necessary to check which provision of which level is applicable.

Swiss public procurement law is based on the WTO Agreement on Government Procurement (GPA), which Switzerland ratified back in 1995. This international treaty was revised on March 30, 2012 (GPA2012). The aim of the revision is to support competition and promote sustainability. The WTO wants to achieve this through transparency and combating corruption. The text of the agreement has also been improved. Electronic instruments such as electronic auctions are also taken into account. The revision also extends the personal and material scope of application. The GPA 2012 also recognizes the achievement of environmental goals as a bid criterion and aims to improve the legal protection of suppliers with new complaint options.

Accordingly, the legislator had to implement these innovations at the international level into national law. Within this framework, the Confederation and the cantons seized the opportunity to harmonize procurement regulations at the federal and cantonal levels.

Following the adoption of the revised Federal Law on Public Procurement (BöB) by the Federal Assembly on 21 June 2019 and the expiry of the referendum deadline on 10 October 2019, the federal government was able to deposit the instrument of ratification for the GPA 2012 on 2December 2020. It entered into force at the same time as the revised BöB and the revised corresponding ordinance (VöB) on 1 January 2021.

As part of the revision of the BöB, the intercantonal agreement on public procurement was revised as well (revIVöB). The cantons must accede to this concordat in order for it to be effective. The accession procedure has been initiated in individual cantons.

The revision of the BöB now introduces the prohibition of bidding rounds at the federal level based solely on price (Art.11 lit. d BoeB). This already applied at the cantonal level. In concrete terms, this means that it is not permissible to conduct negotiations on price alone. In this way, the legislator wants to prevent bidders from bidding too high with their prices, knowing that they can later adjust them downwards. Negotiations on price are, however, still possible within the framework of the bid adjustment (Art. 39 BoeB / revIVöB) and the dialogue processes (Art. 24 BoeB /revIVöB).

Submission law basically recognizes four procedures for submitting a contract to a bidder on behalf of the contracting authority (the state).

There is

i.        the open procedure (Art. 18 BöB / revIVöB) – in which anyone can participate;

ii.       the selective procedure (Art.19 BöB / revIVöB) – in which only certain bidders can participate;

iii.     the invitation procedure(Art. 20 BoeB / revIVöB) – in which the contracting authority invites certain bidders; and

iv.     the single tender action (Art.21 BoeB / revIVöB) – in which the contracting authority awards a public contract directly without a call for tenders.

The law now provides that the single tender action shall always be used for subsequent procurements if a change of bidder a)is not possible for economic or b) technical reasons or c) would cause considerable difficulties or d) would entail substantial additional costs (Art. 21 para. 2 lit. e BöB / revIVöB). Subsequent procurements concern services to replace, supplement or extend supplies, works or services already provided by the original bidder. With regard to the last mentioned possibility of exclusion from competition (exception d, substantial additional costs), the threshold is quite high. In any case, the contracting authority must provide good justification for the subsequent procurement by single tender action.

With Art. 29 BöB / revIVöB, the award criteria have been updated. This is a non-exhaustive list. In particular, the aspect of sustainability as an award criterion has gained increased importance. It covers economic, ecological and social aspects. This means that fair trade products can carry more weight.

Art. 41 BöB is touted as a major achievement and paradigm shift. Whether this is actually the case remains to be seen. The starting point for this change was the revision in the GPA 2012,according to which the contract is to be awarded to the "most advantageous tender". In its message of 15 February 2017, however, the Federal Council was still of the opinion that the previous national law fulfilled this requirement of the WTO Agreement, and accordingly it wanted to adopt the previous wording from the previous Art. 21 aBöB in the draft of Art.41 BöB: "The most economically advantageous tender shall be awarded the contract." In particular, the Federal Council stated that "'Economically favorable' is not synonymous with 'cheap'". In the end, however, Parliament felt that the term "most advantageous bid" better expresses the fact that other factors besides price are also evaluated. However, this was already the case before the revision. It should also be recalled that the Federal Council explicitly stated in the message that "the tender price [...] is always, but only in exceptional cases, the sole decisive factor (Art. 41). It would be inadmissible to evaluate and select tenders exclusively on the basis of non-price criteria". In any case, the legislator wants to extend the focus to other award criteria.

It must be remembered that the suspension of limitation periods (so called court vacations) apply neither in the submission nor the appeal procedure (Art. 56 para. 2 BöB / revIVöB).

The legislator has made a peculiar new provision in Art. 52 para. 2 BöB. On the one hand, the legal protection is extended—which in principle is an improvement. Previously, an appeal to the Federal Administrative Court was not possible in the case of contracts outside the scope of international treaties (Art. 39 of the previous VöB). On the other hand, however, the legal protection is limited to the determination of the violation of federal law. The request for a declaratory judgment may be accompanied by a request for damages. However, this is limited to the necessary expenses of the offer. I.e., the unlawful award of the contract itself cannot be prevented by way of appeal—outside the scope of international treaties! Art.52 para. 2 BöB is therefore rather a paper tiger.

Of course, this overview does not replace consultation with competent lawyers for a specific case.

We wish you and your companies every success in 2021 and are at your disposal for legal counsel!

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