What is an amendment to the articles of association?
An amendment to the articles of association occurs when there is a change to content that is or must be included in the company's articles of association. For a stock corporation, this applies in particular to the company name, registered office, purpose, share capital, share structure, and the form of communications to shareholders (Art. 626 CO). For an LLC, the mandatory components of the articles of association include, in particular, the company name, registered office, purpose, share capital, shares, and form of communication (Art. 776 CO).
The simple rule of thumb is therefore: if a statutory cornerstone of the company changes, an amendment to the articles of association is generally required.
However, not every change in the company is automatically an amendment to the articles of association. New members of the board of directors, new managing directors, signing authorities, or a changed auditing firm are listed in the commercial register, but do not necessarily have to be in the articles of association. Such changes can therefore often be made without revising the articles of association, even if they must be registered with the commercial register. For the stock corporation, the Commercial Register Ordinance shows which details are entered in the commercial register, including the board of directors, authorized representatives, and the auditing firm (Art. 45 para. 1 HRegV). For the LLC, the same applies to managing directors, authorized signatories, and the auditing firm (Art. 73 para. 1 HRegV).
When is an amendment to the articles of association typically necessary?
An amendment to the articles of association is particularly frequently required if the company name, registered office, purpose, or capital structure of the company changes. These are the classic cases in which the articles of association no longer fit the actual or planned organization of the company.
A change in the company name occurs when the company changes its name. Since the company name is a mandatory component of the articles of association for a stock corporation and LLC, the new name must be reflected in the articles of association (Art. 626 para. 1 no. 1 CO, Art. 776 no. 1 CO).
A relocation of the registered office is also typically relevant to the articles of association. The articles of association designate the registered office of the company, i.e., the political municipality. If the registered office is moved to another municipality, the articles of association must be adapted. A mere change of address within the same municipality, on the other hand, usually only affects the legal domicile. Although the legal domicile is entered in the commercial register, it is not the same as the statutory registered office (Art. 45 para. 1 lit. c HRegV, Art. 73 para. 1 lit. c HRegV). In the event of a relocation of the registered office to another registration district, the Commercial Register Ordinance requires registration at the new registered office and, if the articles of association have to be amended, the amendment resolution and a certified copy of the new articles of association (Art. 123 para. 1 HRegV, Art. 123 para. 2 lit. b HRegV).
A change of purpose is also a classic trigger. If a company significantly expands, shifts, or realigns its activities, an internal decision is not sufficient. The purpose must be specified in the articles of association (Art. 626 para. 1 no. 2 CO, Art. 776 no. 2 CO).
Changes in capital also regularly lead to an amendment of the articles of association. For a stock corporation, this concerns, for example, the amount and currency of the share capital, the contributions made, as well as the number, nominal value, and class of share (Art. 626 para. 1 no. 3 CO, Art. 626 para. 1 no. 4 CO). The splitting or consolidation of shares is also carried out by amending the articles of association (Art. 623 para. 1 CO). For an LLC, the amount of share capital as well as the number and nominal value of the shares are defined in the articles of association (Art. 776 no. 3 CO). An increase in share capital must be registered with the commercial register within six months, otherwise the resolution becomes void (Art. 781 para. 4 CO).
Which modern corporate rules can trigger an adaptation?
Since the revision of company law, many companies have proceeded to modernize their articles of association. An amendment to the articles of association may be necessary, for example, if a stock corporation wishes to hold its general meeting abroad. For this, the law requires an important resolution of the general meeting (Art. 704 para. 1 no. 11 CO).
Virtual general meetings can also raise statutory questions. For non-listed companies, waiving an independent proxy to hold a virtual general meeting requires a qualified majority (Art. 704 para. 1 no. 15 CO).
Other examples include the introduction of a capital band, the restriction on the transferability of registered shares, the introduction of voting shares, a change in the currency of the share capital, or a statutory arbitration clause (Art. 704 para. 1 CO). For an LLC, comparable important resolutions include, for example, the introduction of shares with privileged voting rights, changes to the transferability of shares, an increase in share capital, a change in the currency of the share capital, or a statutory arbitration clause (Art. 808b para. 1 CO).
Who decides on the amendment to the articles of association?
In a stock corporation, the general meeting is fundamentally responsible for establishing and amending the articles of association. This competence is non-transferable (Art. 698 para. 2 no. 1 CO). In an LLC, the amendment of the articles of association is fundamentally the responsibility of the shareholders' meeting (Art. 804 para. 2 no. 1 CO).
For certain particularly important resolutions, the law requires a qualified majority. In the case of a stock corporation, at least two thirds of the represented votes and the majority of the represented nominal share values are required, among other things, for a change of purpose, relocation of the registered office, certain capital measures, and the introduction of a statutory arbitration clause (Art. 704 para. 1 CO). In the case of an LLC, at least two thirds of the represented votes and the absolute majority of the total share capital with exercisable voting rights are required, for example, for a change of purpose, increase in share capital, relocation of the registered office, or changes to the transferability of shares (Art. 808b para. 1 CO).
It is also important: if the existing articles of association require higher majorities for certain resolutions, these majority rules cannot simply be abolished with a lower majority. For the stock corporation, this follows from Art. 704 para. 2 CO, and for the LLC from Art. 808b para. 2 CO.
What form does an amendment to the articles of association require?
An amendment to the articles of association is not a purely internal document. In the case of a stock corporation, the resolution of the general meeting or the board of directors on an amendment to the articles of association must be publicly notarized and entered into the commercial register (Art. 647 CO). In the case of an LLC, the same applies to the resolution of the shareholders' meeting or the managing directors (Art. 780 CO).
After the amendment, a complete new version of the articles of association must be submitted to the commercial registry office (Art. 22 para. 3 HRegV). For stock corporations and LLCs, the articles of association must also be certified by a notary public (Art. 22 para. 4 lit. a HRegV).
In practice, this means: first, the new text of the articles of association is prepared. After that, the resolution of the competent body is passed and publicly notarized. Subsequently, the public deed, the new articles of association, and the application to the commercial register are submitted to the responsible commercial registry office.
When is a change to the commercial register sufficient without amending the articles of association?
A mere change to the commercial register is sufficient if an entered fact changes, but no content of the articles of association is affected. Typical examples are changes to the board of directors, new managing directors, changes to the signing authority, or a new auditing firm, provided these points are not additionally regulated in the articles of association.
A mere change of address within the same municipality normally does not require an amendment to the articles of association either, because the statutory registered office remains unchanged. However, the commercial register lists both the registered office and the legal domicile. Therefore, the new address must still be registered with the commercial register (Art. 45 para. 1 lit. c HRegV, Art. 73 para. 1 lit. c HRegV).
The distinction is practically important. An amendment to the articles of association is more complex because it requires a resolution, public notarization, a new version of the articles of association, and an entry in the commercial register. A simple commercial register mutation is usually leaner. If you need support with a change to the commercial register, Jurata will be happy to help you at any time.
Does the commercial register examine the content of the amendment to the articles of association?
The commercial registry office examines the submitted documents. However, its examination is not limitless. The Federal Supreme Court states that the commercial registry office comprehensively examines the formal registration requirements. In contrast, in the case of substantive legal questions, its examination is limited. An entry should only be rejected if it manifestly and unambiguously contradicts the law (BGer 6B_520/2020 E. 2.2.2).
For businesses, this means: the entry in the commercial register is no substitute for a sound legal examination of the articles of association. Especially in the case of capital measures, preferential rights, transfer restrictions, or special shareholder rights, it is worth preparing the text of the articles of association carefully.
Conclusion: When is an amendment to the articles of association necessary?
An amendment to the articles of association is always necessary when a point changes that is contained in the articles of association or must be searchingly regulated in the articles of association. For a stock corporation and LLC, this applies in particular to the company name, registered office, purpose, capital, shares, as well as special statutory rules.
An amendment to the articles of association is generally not required if only a fact relevant to the commercial register is adapted that is not part of the articles of association. This often includes personnel changes, signing authorities, or a mere change of address within the same municipality.
The most important practical tip is: first check whether the change affects the text of the articles of association. If so, you need a valid resolution, public notarization, new articles of association, and the entry in the commercial register.
Frequently asked questions about amending the articles of association
Does every change in the commercial register require new articles of association?
No. An amendment to the articles of association is only necessary if the text of the articles of association is affected. Many changes to the commercial register, such as new signing authorities or changes to corporate bodies, can be made without new articles of association.
Must a relocation of the registered office always be notarized?
If the statutory registered office is moved to another municipality, an amendment to the articles of association is basically required. For a stock corporation and LLC, this must be publicly notarized and entered into the commercial register (Art. 647 CO, Art. 780 CO).
Is a commercial register application sufficient for a change of address?
Mostly yes, provided the company moves within the same municipality and the statutory registered office remains unchanged. The legal domicile is kept in the commercial register, but is not necessarily identical to the text of the articles of association (Art. 45 para. 1 lit. c HRegV, Art. 73 para. 1 lit. c HRegV).
Who must submit the new articles of association?
After an amendment to the articles of association, a complete new version of the articles of association must be submitted to the commercial registry office (Art. 22 para. 3 HRegV). In practice, this is done together with the public deed and the application to the commercial register.
