How does the entry in the commercial register for company formation work?

Anyone who runs a commercial enterprise is obliged to be entered in the commercial register (Art. 934 para. 1 CO). However, companies also have the right to be registered if they operate a business under a company name that does not have to be registered (Art. 934 para. 2 CO).

With regard to registration, the company forms of the Code of Obligations can be divided into four different categories:

Swiss companies requiring registration

Companies are said to require registration if registration in the commercial register is a prerequisite for their formation. These companies only come into existence when they are entered in the commercial register (constitutive effect of the entry, see blog entry).  These include:

• The AG/Kommandit-AG (643 & 764 OR)
  
• The GmbH (780 OR)
  
• The cooperative (835 OR)
  
• The non-commercial general partnership / limited partnership (553 & 595 CO)
  

Obligation to register Swiss companies

There is an obligation to register for all companies that operate a “business conducted in a commercial manner” (Art. 934 para. 1 CO), but which come into existence as a company before being entered in the commercial register (declaratory effect of the entry). This applies to the following forms:

• Commercial general partnership/ limited partnership (552 & 594 CO)
  
• An association that operates a commercial enterprise or is subject to auditing (61 ZGB)
  
• Sole proprietorships that generate a turnover of at least CHF 100,000 in one year (36 HRegV)
  
• Branches of domestic and foreign companies (935 OR)
  

Eligibility for registration

It can be advantageous for a company to be voluntarily entered in the commercial register. On the one hand, registration entitles the company to exclusive use of the company name, and on the other hand, the creditworthiness can be increased, as the company becomes eligible for bankruptcy (Art. 39 para. SchKG). The following are entitled to registration:

• The association that does not run a commercial enterprise and is not subject to auditing (61 ZGB)
  
• Sole proprietorships that generate less than CHF 100,000 turnover in a year (36 HRegV)
  

No right to registration

A simple partnership is neither obliged nor entitled to register.

Are you planning an entry or a change in the commercial register for your company? At Startups.ch you can make changes to the commercial register online, efficiently and cost-effectively.

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