Entrepreneurs setting up their business or wishing to register with the commercial register are required to complete the Stampa and Lex Friedrich Declarations.
A company's founder or any person requesting registration with the commercial register is required to complete the Stampa Declaration and the Lex Friedrich Declaration. The forms, which may vary from one canton to another, must be downloaded directly from the website of the competent commercial register office, duly signed and submitted to that office.
On the Stampa Declaration, the company notifies that it does not have and does not envisage any particular contribution in kind or benefit for its founders, or any recovery of assets or offsetting of debts other than those already appearing in the company’s articles of association or in the documentary evidence submitted to the competent commercial register office.
As for the Lex Friedrich Declaration, for companies, this means declaring that the facts inherent in the formal request do not entail any infringement of the Swiss Federal Act on Acquisition of Real Estate by Persons Abroad (the LFAIE, commonly referred to as Lex Koller or Lex Friedrich) and/or do not require any authorization within the meaning of that Act.
Stampa Declaration
Legal framework
The legal framework for the Stampa Declaration is the Code of Obligations (Article 628(2) CO) and Ordinance on the trade register (cf. Art. 43 (1)(h), Art. 46 (2)(g), Art. 50 (1), Art. 54 (1)(f), Art. 66 (1)(g), Art. 71 (1)(i), Art. 74 (2)(f), Art. 84 (1)(g), Art. 101 (2) ORC – Ordinance on the commercial register).
What should be declared?
Companies must declare the absence of:
- any contributions in kind or recoveries of assets
The company has not recovered or has not undertaken to recover, from partners or similar persons, any assets (e.g. real estate, movables, securities, patents, receivables or property with assets and liabilities according to an inventory), other than those assets indicated in the articles of association. - any planned recoveries of assets
The company does not intend to recover from partners or similar persons, any assets of a certain value other than the assets indicated in the articles of association. - any offsetting
There is no offsetting of debts other than that indicated in the documentary evidence in the possession of the commercial register. - advantages in favor of founders or special rights
The company has not granted to shareholders or other persons, or assured them of, any particular advantage (e.g. share in profit resulting from the balance sheet or in the liquidation surplus, beyond the share normally due to shareholders, or benefits in the context of commercial relations with the company) which is not mentioned in the articles of association.
Lex Friedrich Declaration
Legal framework
The Lex Friedrich Declaration is based on the LFAIE (or Lex Koller/Lex Friedrich Act) which makes the acquisition of real estate by persons abroad contingent upon authorization from the competent cantonal authority (Art. 2 (1) LFAIE).
The LFAIE gives a broad definition of the acquisition of real estate. This can mean:
- the acquisition of a right of ownership, tenancy, habitation or usufruct on real estate
- a holding in a company without legal personality but with capacity to acquire, and the real purpose of which is the acquisition of real estate; the acquisition of a right of ownership or usufruct on part of a real estate fund when this does not form the subject of a regular contract, or on part of similar assets
- the acquisition of a right of ownership or usufruct on a share in a real estate SICAV (an investment company with variable capital), the units of which do not form the subject of a regular contract, or on a share of similar assets
- the acquisition of a right of ownership or usufruct on a share of a legal entity, the real purpose of which is the acquisition of real estate, if the shares of that legal entity are not listed on a stock market in Switzerland
- the constitution and exercise of a right of emption, pre-emption or redemption on real estate or a share thereof
- the acquisition of other rights, which confer on their holder a position similar to that of the owner of real estate
The commercial register official’s duty of verification ensues from Article 18 (2) LFAIE. The scope of this duty of verification has been specified in a Directive aimed at commercial register officials, concerning the acquisition of real estate by persons abroad, the latest version of which is dated January 13, 1998.
What should be declared?
Some cantons, like Bern or Zurich, ask specific questions about the share, or lack thereof, in the company held by persons abroad or by persons acting on behalf of persons abroad.
Other cantons merely require the simple declaration that the facts inherent in the formal request do not entail any infringement of the LFAIE and/or do not require authorization within the meaning of the LFAIE. These other cantons include, for example, Zug, Geneva, Vaud and Fribourg.
Sources:
- Office of the commercial register of the canton of Bern
- Federal Office of the commercial register
- CO
- LFAIE
