Bär & Karrer are most popular:
- within International Law, Insurance, Food, Drugs, Healthcare and Life Sciences topic(s)
- Swiss stock corporations (Aktiengesellschaften) subject to a limited audit requirement and with fewer than ten full-time equivalent positions on an annual average may waive this requirement with the consent of all shareholders – a so called “Opting-Out”.
- Since 1 January 2025, such a waiver is only possible for future financial years (art. 727a CO).
- The Federal Commercial Registry Office (EHRA) commented on this new provision in two practice notices issued in 2024 and 2025, yet various practical questions remained unresolved in day-to-day legal practice. The EHRA addressed these in its Practice Notice 1/2026 of 3 March 2026.
- The company must pass the Opting-Out shareholder resolution and file it with the commercial register before the beginning of the financial year for which the Opting-Out shall take effect. For the financial year in which the Opting-Out resolution is passed, the audit obligation and the mandate of the auditor remain in force until approval of the audited annual financial statements.
- When filing the Opting-Out with the commercial register, the most recently audited annual financial statements must be submitted. The EHRA has clarified that the penultimate annual financial statements also suffice if the most recent ones have not yet been approved by the shareholders' meeting.
- An Opting-Out at the time of incorporation of a company remains permissible.
- The prohibition on retroactive effect also applies to Opting-Outs for foundations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]
