What procedures should an entrepreneur follow when, for one reason or another, they decide to liquidate their company?
The closure procedure differs depending on the company’s legal structure. In the case of a sole proprietorship, closure simply consists of deleting the company from the trade register, provided it is registered. To do this, the entrepreneur must contact the relevant trade register and file an application for deletion, citing the reason.
Closure of a limited company (SA), a limited liability company (SARL) or a cooperative company
Closure of a company involves several stages, ending with its deletion from the trade register.
- Decision to close recorded in certified form. The choice to wind up a company is made by its shareholders at a general meeting, on an ordinary majority or a qualified majority according to the articles of association, in the case of an SA; and at least two thirds of the votes represented and the absolute majority of the share capital in the case of a SARL; and by a majority of at least two thirds of votes in the case of a cooperative company. The decision is taken in the presence of a notary, who records it in a certified document.
- Appointment of the liquidator. The shareholders then appoint a liquidator, who will be responsible, as the name suggests, for liquidation of the company. The liquidator can also be appointed by a court, if a shareholder requests this and has good reason for doing so.
- Registration of the winding-up. The company must send a formal request for registration of the winding-up to the trade register, signed by a member of the board of directors authorized to sign on their own, or by two members. If the whole board of directors resigns, the formal request for registration must then be signed by the liquidators.
- Call to creditors. This is a key stage. The liquidator must contact the Swiss Official Gazette of Commerce (SOGC) for the publication of one call to creditors (Art. 742 Code of Obligations). The board of directors may carry out the call to creditors before or after the General Meeting of Shareholders has passed a resolution. This publication serves to inform all creditors of the winding-up of the company and to instruct them to make their claims known within the following year. Many creditors regularly consult the SOGC or mandate an economic intelligence company to do this.
- Liquidation. The liquidation process starts at this stage and the process can sometimes last years. The liquidator must draw up an inventory of assets and prepare a balance sheet, which includes debt claims arising as a result of publication of calls to creditors in the SOGC. It must complete current business, execute the company’s commitments and liquidate the assets. If the assets no longer cover the debts, it informs the court, which declares bankruptcy. If any assets remain once debts are paid, the liquidator distributes them among the shareholders in proportion to their payments, also taking into account the preferential rights attached to their shares in the company. With respect to a cooperative company, when the articles of association do not provide for an allocation of surplus assets among shareholders, this surplus must be allocated for cooperative purposes or for other purposes in the public interest.
- Deletion from the trade register. One year at the earliest after publication of the call to creditors, the liquidator may ask the trade register to delete the company, provided liquidation is complete.
Points to be aware of
- Any correspondence sent to the trade register must be accompanied by a photocopy of an identity document (Art. 24b ORC).
- Remember that the call to creditors comes under the remit of the liquidator, who must publish it as promptly as possible so as not to delay closure of the company.