Owners of bearer shares (or bearer participation certificates) have not yet been subject to any reporting requirements and were therefore not known to the company. The Federal Council has now decided to implement the recommendations of the Gafi (Groupe d’action financière) and put them into effect on July 1, 2015 as part of the new legislation (Art. 697i ff. OR). The Gafi is an international group of experts based in Paris that issued recommendations on combating money laundering in 2012. In addition to the stricter transparency provisions in the Code of Obligations, the Money Laundering Act (GWG) and criminal law have been tightened.
New reporting requirements for bearer shareholders (or holders of bearer participation certificates) and their consequences
- This affects owners and buyers of bearer shares (or bearer participation certificates) in non -listed companies. Owners of bearer shares must report their name or company name and address to the company. The identity of the owner and ownership of the shares must be proven.
- Registered or bearer shareholders as well as owners of ordinary shares in a GmbH, whose share exceeds 25% of the capital or the voting rights, are also subject to the reporting obligation.
- If the reporting obligation is not met, the participation rights and the property rights are forfeited (including the right to a dividend).
Which societies are affected and what are the obligations?
- Companies with bearer shares (or bearer participation certificates) are obliged to keep a register of bearer shareholders. The directory must be made accessible at all times.
- Limited liability companies and cooperatives are also obliged to keep a register.
- If dividends have already been distributed to unregistered bearer shareholders, these can be reclaimed by the company.
- The board of directors must ensure that no shareholders exercise their membership or property rights in violation of their reporting obligations.
- Companies whose articles of association do not comply with the new regulations must adapt their articles of association and regulations (transition period until July 1, 2017).
The reporting obligation for buyers of bearer shares (from July 1, 2015) is one month after the acquisition of the security. This period also applies if the 25% share in the capital or in the voting rights is exceeded. Persons who were in possession of the bearer shares before July 1, 2015 must complete their reporting obligation by December 31, 2015.
Cash transactions of CHF 100,000 or more are subject to the Money Laundering Act
In addition to the changes explained, the Money Laundering Act (GwG) has also been tightened based on the Gafi’s recommendations. For cash transactions of CHF 100,000 or more, several obligations (e.g. identification of the contracting party, etc.) in accordance with Art. 8a para. 1 nGwG are met. For further information are we hesitate to contact U.S.
how can we help you?
In the leaflet “Need for action for companies with bearer shares or bearer participation certificates”, you can find out what action is required for the companies concerned and how we can support you in this.
We are happy to answer any questions you may have!