Anyone taking a leadership role in a Swiss corporation owes the company care and loyalty — plus a catalogue of non-delegable tasks. Breaches lead to personal liability.
The duties of directors (AG) and managing officers (GmbH) are set out in detail in Art. 716a–717 CO and Art. 810 CO. The statutory catalogue is extensive — and its breach triggers personal liability under Art. 754 ff. CO.
The duties fall into three groups: non-delegable core tasks, general duty of care and loyalty, and specific statutory duties (social security, taxes, accounting). The burden of proving proper performance lies with the body — in dispute, the board must show it fulfilled its duties.
1. The non-delegable duties of the board (Art. 716a CO)
The 2023 stock corporation reform slightly modernised the catalogue. Seven duties are non-delegable — they cannot be delegated and must be exercised by the entire board:
1. Overall management of the company and issuing the necessary directives.
2. Determination of the organisation.
3. Configuration of the accounting system, financial control and financial planning.
4. Appointment and dismissal of persons entrusted with management and representation.
5. Supervision of those persons — including compliance with laws, articles, regulations and directives.
6. Preparation of the business report (incl. compensation report for listed companies), preparation of the general meeting and execution of its decisions.
7. Filing for a composition moratorium and notifying the court in case of over-indebtedness.
2. Duty of care and loyalty (Art. 717 CO)
Directors and managing officers must perform their duties with all due care and safeguard the company's interests in good faith. This includes:
• Informing oneself appropriately — not signing 'blind'.
• Making business decisions on an adequate information basis (Business Judgment Rule).
• Disclosing personal interests and refraining from voting in conflicts of interest (Art. 717a CO — new since 2023).
• Keeping company secrets.
• Not appropriating business opportunities of the company.
The Federal Supreme Court's Business Judgment Rule (BGE 139 III 24): a decision is deemed compliant when taken on an adequate information basis and in the company's interest — even if it later turns out to be wrong. This protects from hindsight bias, but only with clean documentation.
3. Duties on threatened capital loss and over-indebtedness (Art. 725 CO)
Since the 2023 reform, requirements are sharper:
• On reasonable concern of insolvency (Art. 725 para. 1 CO), the board must take measures to secure liquidity.
• On capital loss (Art. 725a CO) — when assets cover only half of the share capital plus statutory reserves — a general meeting must be called and restructuring measures proposed.
• On over-indebtedness (Art. 725b CO) — when liabilities exceed assets — the court must be notified, unless sufficient rank-subordination agreements are in place.
4. GmbH managing officers (Art. 810–812 CO)
GmbH managing officers handle both operational management and many tasks that fall to the AG board. Their duties derive from Art. 810 CO (care and loyalty), Art. 811 CO (confidentiality) and Art. 812 CO (non-compete, if articles provide). With several managing officers, the collegiality principle applies — decisions are made jointly with documented resolutions.
5. Specific statutory duties outside the CO
• Social-security contributions: timely remittance of AHV, IV, EO, ALV — breach triggers personal liability under Art. 52 AHVG.
• Withholding tax: fiduciary money; misappropriation leads to tax-evasion proceedings.
• Accounting under Art. 957 ff. CO — gross breaches are criminal under Art. 166 SCC.
• VAT: registration and accounting from CHF 100,000 revenue.
• Data protection: under the revised DPA since 2023 with fines up to CHF 250,000 for controllers.
• Anti-money-laundering for financial intermediaries (AMLA, FINMA supervision).
6. Duties in practice — the compliance checklist
• At least four board meetings per year with detailed minutes.
• Annual approval of financial statements, management report and compensation report.
• Half-yearly liquidity check with equity review.
• Structured risk inventory with documented treatment.
• Clear rules of procedure with competence allocation — who decides what up to which threshold.
• Conflict-of-interest declaration from all bodies, updated at least annually.
• Quarterly check of incoming/outgoing social-security registrations.
7. What happens on duty breaches
Breaches can be pursued under civil law (liability action), criminal law (e.g. unfaithful management under Art. 158 SCC, embezzlement under Art. 138 SCC), regulatory law (FINMA, FSO) and tax law (joint liability). Criminal consequences hit the body personally — D&O insurance does not cover them.
Practical note
Sobiera Legal Consulting supports Swiss SMEs in setting up a compliance structure, in risk audits for directors and in preparing difficult resolutions — in Ukrainian, Russian, German, English and French. Anyone newly joining a board or in a crisis situation benefits from a structured duties analysis.