Swiss company formation is a structured legal process governed by the Swiss Code of Obligations, federal regulations, and cantonal practices. As a Swiss lawyer, I approach incorporation not merely as an administrative formality but as a precise legal act that establishes a new legal entity under Swiss law, conferring rights, obligations, and corporate personality.
This guide outlines the principal legal considerations in forming a company in Switzerland, from choosing the correct corporate structure to ensuring compliance with ongoing statutory duties.
Legal Foundations of Swiss Company Formation
The legal basis for Swiss company registration lies in the Swiss Code of Obligations (Obligationenrecht, OR), particularly Articles 620–763 for corporations and Articles 772–827 for limited liability companies. Additional statutes, such as the Federal Act on the Commercial Register and the Commercial Register Ordinance, govern procedural aspects.
Swiss law requires companies to be entered into the Commercial Register to gain legal personality. Before registration, the company is a mere pre-incorporation entity without the capacity to act in its own name, except for certain preparatory acts.
Choosing the Legal Form: AG vs GmbH
From a legal standpoint, the choice between an Aktiengesellschaft (AG) and a Gesellschaft mit beschränkter Haftung (GmbH) has significant implications.
Aktiengesellschaft (AG)
- Minimum share capital: CHF 100,000, at least CHF 50,000 paid in before registration (Art. 621 OR).
- Shareholder anonymity: Shareholders are not listed in the public register, which makes the AG the preferred vehicle for those seeking Swiss anonymous company formation, while still meeting beneficial ownership disclosure obligations under Art. 697j OR.
- Governance: Must appoint a board of directors (Verwaltungsrat), with at least one member resident in Switzerland authorised to represent the company (Art. 718 OR).
GmbH
- Minimum capital: CHF 20,000, fully paid in (Art. 773 OR).
- Transparency: All shareholders are entered in the commercial register (Art. 790 OR).
- Governance: Managed by one or more directors (Geschäftsführer), with at least one resident in Switzerland.
From a legal risk perspective, both forms limit liability to the company’s assets, but AGs offer greater flexibility for share transfers and investor participation.
Incorporation Procedure: Legal Stages
The Swiss company formation process follows a series of formal legal steps:
- Drafting the Articles of Association (Statuten)
- Mandatory contents include company name, registered office, corporate purpose, share capital, and governance rules (Art. 626 OR for AG; Art. 776a OR for GmbH).
- Certain provisions, such as restrictions on share transfers, require explicit statutory wording.
- Capital Deposit
- A blocked capital account must be opened with a Swiss bank; funds remain inaccessible until registration is confirmed.
- Incorporation Deed Before a Notary
- The founders (or their representatives) execute the public deed of incorporation before a licensed Swiss notary, in compliance with Art. 629 OR.
- Registration with the Commercial Register
- The notary files the incorporation documents, including proof of capital deposit, notarised articles, and director declarations.
- Upon registration, the company acquires full legal personality (Art. 643 OR).
- Tax and Regulatory Registration
- VAT registration if turnover exceeds CHF 100,000 annually.
- Notification to the cantonal tax office.
- For regulated sectors, licensing with FINMA or other authorities.
Special Structures: Anonymous, Crypto, and Offshore-Oriented Companies
Swiss Anonymous Company Formation
Legally, anonymity refers to the absence of public shareholder registers for AGs. However, under the Anti-Money Laundering Act (AMLA) and Art. 697j OR, beneficial owners must be disclosed to the company and kept on file, accessible to competent authorities. This ensures compliance with FATF standards while preserving business confidentiality.
Swiss Crypto Company Formation
Crypto-related businesses often incorporate in the canton of Zug due to regulatory clarity. Under Swiss law:
- Companies must adhere to AML obligations, often through membership in a self-regulatory organisation (SRO) such as VQF.
- Token classifications (payment, utility, security) follow FINMA’s ICO Guidelines.
- Additional licensing may apply for exchanges, custodians, or asset managers.
Swiss Offshore Company Formation
While not “offshore” in the traditional sense, holding companies and international trading entities use Swiss incorporation to benefit from treaty protection, stable governance, and in some cantons, preferential holding company tax regimes.
Governance and Directors’ Duties
Swiss corporate law imposes fiduciary duties on directors, including:
- Duty of Care and Loyalty (Art. 717 OR): Directors must act in the company’s best interest and avoid conflicts of interest.
- Duty to Maintain Solvency (Art. 725 OR): Directors must take measures if the company is over-indebted or at risk of insolvency.
- Accounting Obligations (Art. 957 OR): Companies must keep proper accounts and prepare annual financial statements.
Failure to comply can lead to personal liability under Art. 754 OR.
Post-Incorporation Compliance
From a legal compliance perspective, companies must:
- Hold annual general meetings (AGMs) and record minutes.
- Maintain a shareholders’ register (for GmbH) or a beneficial owners register (for AG).
- File annual tax returns and pay cantonal and federal corporate taxes.
- Renew business licences and sector-specific permits where applicable.
Bank Account Opening: Legal Considerations
Swiss banks operate under stringent KYC (Know Your Customer) rules. For corporate accounts:
- The bank will require notarised incorporation documents, proof of beneficial ownership, and a business plan.
- Crypto-related companies must expect enhanced due diligence, often including AML policy review.
Taxation and Legal Structuring
Tax planning is integral to Swiss company formation. Corporate tax is levied at federal, cantonal, and municipal levels.
- Cantonal rates vary widely (e.g., Zug ~11.8%, Geneva ~14–16%).
- Holding companies may benefit from reduced taxation on qualifying participations (Art. 28 Para. 2 Federal Tax Act).
For cross-border activities, Switzerland’s network of double taxation treaties offers legal certainty on withholding tax rates and income allocation.
Legal Timelines and Costs
Under Swiss law, incorporation can be completed in 2–4 weeks if documentation is in order. Costs comprise:
- Notary and registration fees (cantonal variations apply).
- Share capital deposits.
- Legal fees for drafting articles, advising on governance, and regulatory filings.
Complex structures, such as Swiss crypto company formation, may require additional legal opinion letters for regulatory classification.
Cantonal Differences: Legal Impact
The choice of canton affects not only tax rates but also administrative timelines and regulatory practices.
- Zug: Fast registration, crypto-specialised notaries, competitive tax rates.
- Zurich: Central commercial court, strong financial services ecosystem.
- Geneva: International arbitration hub, suited for trade and commodity companies.
Comparison Table: AG vs GmbH – Legal Aspects
| Legal Feature | AG | GmbH |
| Capital Requirement | CHF 100,000 (50% paid) | CHF 20,000 (100% paid) |
| Public Shareholder Register | No | Yes |
| Governance | Board of Directors | Managing Directors |
| Transfer of Shares | Freely transferable unless restricted | Requires shareholder approval |
| Ideal Use | Larger, investor-heavy businesses | SMEs, owner-managed firms |
Regulatory Trends and Future Reforms
Recent reforms have:
- Introduced greater flexibility in share capital currency.
- Enhanced transparency obligations for bearer shares (largely abolished except for listed companies).
- Digitalised certain incorporation procedures, allowing remote notarisation in specific cantons.
Entrepreneurs should expect continued alignment with OECD and EU standards on corporate governance, AML, and tax transparency.
Conclusion
From a legal standpoint, Swiss company formation is a precise and regulated process that demands careful planning, strict adherence to statutory requirements, and informed decision-making on corporate structure. The benefits—stability, international credibility, and a sophisticated legal framework—are accessible to those who approach incorporation with a clear understanding of their legal obligations and strategic objectives.
