The GmbH is one of the most popular legal forms for start-ups in Switzerland. The regulations concerning this business structure are closely related to those of the corporation. Thus, the limited liability company, like the stock corporation, consists of three independent bodies: the shareholders' meeting (for the AG it is the general meeting), the management (for the AG it is the board of directors) and the statutory auditors, which a limited liability company can waive under certain conditions.
The shareholders' meeting
The shareholders' meeting, like the general meeting of an AG, is the supreme body of the GmbH and determines the statutes, the management and, if necessary, the statutory auditors. It is convened annually within six months of the end of the financial year. The convocation must be sent out at least 20 days before in writing or by e-mail to all partners. One or more shareholders who jointly represent at least 10% of the share capital may also convene an Extraordinary General Meeting. At the shareholders' meeting, motions of the managing directors and the shareholders are decided, provided they were on the agenda and announced.
If all shareholders agree, the formal requirements of convocation can be waived as part of a universal meeting. The negotiations and decisions in this case are only valid if all partners or their representatives are present. The shareholders' meeting is led by the chairman of the management board. They appoint minutes-takers who don’t have to be part of the circle of shareholders themselves and can have the role of company secretaries.
The minutes record the number and denomination of the represented shares, election results and resolutions, requests in the form of requests and received answers as well as answers given on the record. The minutes are signed by the chairman and the secretary and then sent to all members. The nominal value of all common shares held by a shareholder determines the scope of his voting rights, whereby each shareholder has at least one vote. Resolutions and elections are decided by absolute majorities, the chairman has the power of the casting vote. In the event of changes in the purpose of the company, a change in the transferability of the ordinary shares, a transfer of the registered office, an increase in the share capital or the dissolution of the company,
Each shareholder may be represented either by another shareholder, spouse, partner or registered partner, a descendant or another person with whom they live together, provided that they grant the respective person written power of attorney.
The shareholders' meeting as a body also has the task of approving the annual financial statements and determining the dividend and the compensation of the managing directors. The dissolution of a company is also decided by the General Meeting. Unlike the general meeting of an AG, the shareholders' meeting can also have a direct influence on the business of the company. The individual shareholders are entitled to the management (self-supply principle). Since July 2015, at least one of the representatives of a limited liability company must be domiciled in Switzerland and be able to represent the company within Switzerland; this representation can also be carried out via a trustee in Switzerland.
The company board
The management is elected by the company meeting and has the task to implement the resolutions passed by the shareholders' meeting. Managing directors don’t have to be members of the shareholders' meeting, but they must be natural persons. They can be recalled at any time by a resolution of the general meeting.
The directors are responsible for the day-to-day management of the company, the execution of the requirements set out in the law and the Articles of Incorporation, the accounting and financial supervision, the preparation of the annual report and the preparation of the general meeting, and notification of the competent jurisdiction in the event of over-indebtedness.
Managing directors or third parties entrusted with the management have due diligence and confidentiality responsibilities. They must protect the interests of the GmbH and must not compete with their business goals. Exceptions to the non-competition clause for the management must be decided unanimously by the shareholders' meeting.
Since 2007 it is no longer the form of the company that decides the audit obligation, but rather the economic size, with the exception of sole proprietorships and partnerships. The general meeting of a limited liability company must always elect an auditor, unless it is not obliged to make an ordinary audit, all shareholders agree to the waiver and the company has no more than 10 full-time employees on average over the year.
An auditor is elected for one year and remains in office until the final annual accounts have been accepted, but may be recalled and re-elected at any time. SIGTAX is specialized in providing a wide range of audit services for GmbHs and for other types of companies in Switzerland. We are happy to advise you on this matter and are looking forward to hear from you.