Commercial law: SA, Sàrl, sole proprietorship, association… what type of structure should I adopt?

You are in the process of creating your company, but do not know which legal form to choose? Lawrence presents the different types of companies existing in Switzerland and guides you in your choice!

There are essentially 5 criteria to consider when choosing a legal form: capital, risk and liability, independence, taxes and social security. They vary according to the chosen structure.

  1. The capital

You will have to consider:

– The foundation costs when creating the structure;

– The capital requirements in the early years of the company’s existence;

– The founding capital required by law.

 

  1. Risk and liability

If the project itself is “risky” or if there is a large monetary contribution from the founders, it makes more sense to go for a limited liability company.

 

  1. Independence

The room for maneuver is more or less wide depending on the legal form of the company. You also have to ask yourself who is behind the company: are you alone, with partners or with shareholders?

 

  1. Taxes

The assets of the company and the owner may be taxed together or separately. Corporations are generally subject to double taxation, while partnerships are not. 

 

  1. Social security

Social insurance is compulsory, optional or even non-existent depending on the legal form of the company. In the case of an individual reason, owners are not protected by unemployment and their pension fund is optional. 

In public limited companies or limited liability companies, the owner is considered as an employee and thus benefits from the corresponding protections.

 

There are 9 legal forms in Switzerland: the sole proprietorship, the simple partnership, the general partnership, the limited partnership, the public limited company (SA), the limited liability company (Sàrl), the cooperative society, the foundation and the association.

  1. The sole proprietorship

An individual reason is founded by a natural person engaged in a commercial activity. The activity must be closely related to the owner, whose name must be entered in the commercial register and in the company register.

Entry in the commercial register is required. 

The owner has a great deal of freedom in the management of the business. A founding capital is not required, and the founding costs are very low. There are few administrative burdens. 

The sole proprietorship is not subject to double taxation. 

However, there is less financial freedom: accounting is strictly monitored by the commercial register.

In addition, the responsibility of the owner is great: private and business taxes are linked, and he is solely responsible in case of bankruptcy. He can be prosecuted for this. 

The sole proprietorship is made for your company if you want to concentrate on the business, reduce costs and if you are the only person doing business there.

 

  1. The simple company

It is the “simplest” form, as the name suggests, of a partnership. Two or more individuals sign a contract to combine their efforts and resources for a common purpose.

It is a community of economic interest, which is not a legal person. Its creation is often not even realized because it does not require any announcement to a public authority.

Usually, the simple company is created for a short period of time. A consortium in connection with a construction project is a good example of a simple partnership.

The partners have unlimited liability for the obligations of the structure. 

The simple partnership does not require a specific form and it is not possible to register it in the commercial register. 

However, the Lawrence team recommends using a lawyer to draw up a contract setting out the management, division of work, areas of competence, contributions, and the distribution of gains and losses. 

 

  1. The partnership 

It is founded by the association of two or more natural persons. This form is particularly suitable if there is personal and professional proximity between the partners, as in the case of family businesses. There is an interdependence between the partners. The company is not a legal person per se but can acquire rights in its own name. 

A founding capital is not required, but registration in the commercial register is mandatory. The partnership is not taxable, but the income of the partners is. 

 

  1. The limited partnership

It’s a form of partnership, favoring one of the partners. It allows the company to expand its financing base without extending its management base.

This form is suitable for your situation if a sole proprietorship or partnership wishes to increase its financing without increasing the number of partners.

The limited partnership is formed as soon as a partnership agreement is drawn up and a compulsory entry is made in the commercial register. The law does not require a founding capital.

The partnership contract establishes the relationship between the general partner (the “privileged” partner) and the limited partners. We advise you to consult a lawyer for the drafting. 

The general partner will be responsible for the obligations related to his private assets and for the management of the company. 

The limited partners must make a contribution to the company (called the limited partnership contribution). They are not responsible for the management of the firm and cannot be sued in bankruptcy. Their right of control is limited. 

This legal form is not very common in Switzerland. 

 

  1. The public limited company (SA)

Together with sole proprietorships and limited liability companies, the AG is one of the most common legal forms in Switzerland.

The public limited company is founded by one or more natural or legal persons.

It is a capital company, whose share capital is divided into shares. This confers advantages in terms of liability and security: in the event of bankruptcy, only the shares are affected. A corporation requires at least one shareholder. 

The shareholders’ agreement clarifies the shares if several shareholders contribute capital to the company. We recommend the assistance of a lawyer in drafting this important document. 

The law requires an entry in the commercial register, notarization of the foundation, the formation of a board of directors and approval by an auditor in order to found a corporation. A founding capital of CHF 100,000 is required, but this also includes assets in kind. The addition of the word “SA” in the name is mandatory. 

The SA is subject to double taxation of the shareholders on the profits of the AG and on their shares. The list of shareholders must be kept up to date. 

The Board of Directors of a corporation is the supreme organ of its management. It represents the company in dealings with third parties. Each member must be resident in Switzerland and have his or her name entered in the commercial register. The Board of Directors has 7 obligations that it cannot delegate: Art 716a CO, https://www.admin.ch/opc/fr/classified-compilation/19110009/index.html#a716 

A general meeting of shareholders must be held every year.

Why set up a public limited company?

A public limited company is the right legal form for companies with high capital requirements. 

Its complex, lengthy and costly creation process makes it advisable to work with a lawyer to facilitate the foundation of a public limited company. 

 

  1. The limited liability company:

The limited liability company mixes the characteristics of a general partnership and a public limited company. SMEs and family businesses generally adopt this structure. 

The limited liability company is created upon entry in the commercial register, notarization of its foundation, drafting of the articles of association, formation of a general meeting and an auditing body. 

A founding capital of CHF 20,000.- is required by law, either in cash or in kind. Each partner must contribute at least CHF 100.- to this capital.

The foundation costs are lower than those of a public limited company. 

Limited liability” only protects the partners in the event of bankruptcy, but not the debts of the company.

The limited liability company is subject to double taxation: the net profit and the income of the partners is taxable.

 

  1. The cooperative society

In a cooperative society, natural and/or legal persons collaborate for the purpose of development and economic mutual aid. The profit of the company itself is thus not the goal. Farmers often form cooperatives.

Entry in the commercial register and the drafting of articles of association approved by the constituent assembly is compulsory. 

At least seven founders must run a cooperative society.

 

  1. The foundation

Dedicate its assets to a specific purpose. The founding capital is at least CHF 50’000.-. The foundation is created as soon as a Act of Foundation is drawn up. According to the law, a notary must publicly authenticate it to validate its creation. A foundation must be made up of a Foundation Board and an Auditing Body. 

Registration in the Commercial Register is also compulsory. 

In addition, every foundation is placed under the supervision of a corporation under public law (Confederation, Canton or Commune), in order to ensure that the use of resources is linked to the purpose of the foundation.

The legal form of an association is rigid: any modification of its purpose and/or constitution can only be approved by the supervisory authority.

 

  1. The association

Is formed from a group of at least 2 natural and/or legal persons for non-profit purposes. These persons will work in order to pursue the objective of the association. No founding capital is required for its formation. 

The association is created as soon as the statutes are drafted and validated by the constituent assembly (the creators of the association present). The statutes establish the purpose of the association and its internal organization, which must obligatorily constitute a General Assembly (all the members of the association) and a Committee with a President, a Secretary and a Treasurer. The statutes freely determine the body competent to amend them, as well as the method of decision making. 

The association is a legal person from the moment of its creation.

Entry in the Commercial Register is optional, unless the non-profit association is engaged in a commercial activity.

 

This brings us to the end of this informative article. The creation of a company and the choice of its legal form is an important moment for any entrepreneur. We understand that this can be a complex process if guidance is needed. However, don’t worry, as the services of a specialist lawyer are essential and will help you get through this complicated process. Lawrence will be with you every step of the way as you set up your company!

 

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