<h4>II. Elements of the New Transparancy and Due Diligence Obligations</h4>
The new rules on transparency and due diligence obligations deviate substantially from the Responsible Business Initiative. In particular, the new rules do not contain a liability regime.
The key elements of the new obligations are:
<h4>Non-Financial Reporting Obligations</h4>
Companies of public interest (i.e., listed companies, banks, insurance companies and other supervised companies in the financial sector) that together with controlled companies in Switzerland and abroad (the Group) (i) have at least 500 FTEs on annual average, and (ii) exceed either total assets of CHF 20 million or revenues of CHF 40 million, must report annually on non-financial matters. The proposed provisions in article 964bis et seq. of the Swiss Code of Obligations on transparency in non-financial matters are based on the Non-Financial Reporting Directive of the European Union.
The report must contain information necessary to understand the Group&#8217;s business development, performance, position, as well as the impact the Group&#8217;s activity has on environmental (including CO2 targets), social, employee, human rights and anti-corruption matters (the Non-Financial Matters).
According to a non-exhaustive list, the report has to include a description of the following matters:
<ul>
<li>the business model and policies pursued, including due diligence applied, with respect to the Non-Financial Matters,</li>
<li>the measures taken, together with an assessment as regards their effectiveness,</li>
<li>the main risks in connection with the Non-Financial Matters resulting from the Group&#8217;s own operations and, where relevant and proportionate, from its business relationships, products or services, and</li>
<li>the main key performance indicators with respect to compliance with such Non-Financial Matters.</li>
</ul>
In accordance with the principle of comply or explain, a reporting company may elect not to report in relation to matters with respect to which the Group does not pursue policies if the report provides a clear and reasoned explanation therefor. Further, the report may be based on national, European or international reporting standards, such as the OECD guidelines for multinational enterprises, the standards of the Global Reporting Initiative (GRI) or others.
The board of directors must approve the report, as must the shareholders&#8217; meeting. The report does not have to be audited. It is published electronically and must remain accessible for at least ten years.
<h4>Due Diligence Obligations in Connection with Conflict Minerals and Child Labor</h4>
Companies with place of incorporation or head office in Switzerland that import or process minerals or metals containing tin, tantalum, tungsten or gold from conflict or high-risk areas are subject to special due diligence and related reporting obligations with respect to their supply chain. The same obligations apply to companies that offer products or services where there are reasonable grounds to suspect that they were produced or provided using child labor. Under certain circumstances, the Federal Council may define exceptions.
These obligations again follow the blueprint of EU regulation, specifically Regulation (EU) 2017/821, and the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. They are divided into the following five categories:
<ul>
<li>implementation of a management system with a defined supply chain policy and a system to trace back the supply chain,</li>
<li>identification and assessment of actual and potential risks of adverse impacts of their supply chain;</li>
<li>implementation of a risk management plan that provides for measures to prevent or mitigate such risks;</li>
<li>independent third party audits regarding compliance with these obligations and</li>
<li>issuance of an annual report on compliance with these obligations. The report must be made available electronically within six month after the end of the financial year and must remain accessible for at least ten years.</li>
</ul>
<h4>Fines for Violation of Reporting Obligations</h4>
Non-compliance with the transparency and due diligence obligations is subject to criminal liability. Anyone who makes false statements in, or fails to provide, a required non-financial report will be fined with up to CHF 100,000.
<h4>III. Entry into Effect</h4>
If no optional referendum is requested within 100 days after official publication of the Counterproposal in the Swiss Federal Gazette, the new transparency and due diligence obligations will enter into effect once the implementing ordinance has been finalized. In this case the reporting and due diligence obligations will need to be observed for the first time with respect to the financial year commencing one year after the entry into effect of the Counterproposal. For financial years that correspond to the calendar year, this would therefore likely be financial year 2023.
Swiss companies affected by the new rules, are well advised to start taking preparatory steps to be able to comply with the additional reporting and due diligence obligations upon their effectiveness.
Irrespective of the entry into effect of the new transparency and due diligence obligations, as part of the Swiss corporate law reform approved by the Swiss Parliament on June 19, 2020, new reporting obligations will be introduced for companies that, directly or indirectly through a controlled entity, extract minerals, oils, natural gas or primary forest wood and which are subject to an ordinary audit pursuant to art. 727 para. 1 of the Swiss Code of Obligations. These companies will have to publish a special report with respect to cash and in-kind payments to governmental authorities. Only payments that result from business activities triggering the new transparency requirements and that in the aggregate amount to CHF 100,000 or more per financial year must be reported. The board of directors must approve the report. The report must be made available electronically within six month after the end of the financial year and must remain accessible for at least ten years.
Companies trading the natural resources listed above are not subject to the new transparency obligations. The Federal Council is, however, authorized to declare the transparency rules applicable to trading companies as well.
On September 11, 2020, the Federal Council announced that the entry into force of these transparency obligations, as well as the rules on gender representation in boards of directors and executive management of listed companies, will enter into force already on January 1, 2021, a year earlier than the remainder of Swiss corporate law reform. Pursuant to the applicable transitional provision, the reports must be published for the first time in respect of the financial year starting one year after the entry into force of the new rule, i.e., with respect to the financial years starting from January 1, 2022 onwards.

Responsible Business Initiative Rejected

Corporate / M&A

Regulatory

Competition

IP / IT

Litigation

Financing and Investment Products

Liberty Global

On November 11, 2020, the all-cash public tender offer by UPC Schweiz GmbH (UPC), a subsidiary of Liberty Global plc, for all publicly held shares of Sunrise Communications Group AG (Sunrise) has been settled. UPC has acquired a 98% stake in Sunrise. The transaction values Sunrise’s equity at CHF 5.0 bn.
Homburger AG is advising Liberty Global on the transaction. The Homburger team is led by partners Daniel Daeniker and Daniel Hasler (Corporate / M&amp;A) and includes partners Richard Stäuber, Franz Hoffet (Competition, Regulatory), Stefan Oesterhelt (Tax), Luca Dal Molin (IP / IT) and Roman Baechler (Litigation), counsel Micha Fankhauser (Corporate / M&amp;A), associates Daniel Häusermann, Karin Mattle, Mirko Stiefel and Stefan Luginbühl (all Corporate / M&amp;A), Yves Bianchi, Ramin Gohari and Jonas J. Krull (Competition, Regulatory), David Borer and Pierina Janett-Seiler (Financing and Investment Products), Marc Vogelsang and Raphaël Fellay (both Tax), Kirsten Wesiak-Schmidt (IP / IT), as well as junior associates Cédric Berger, Géraldine Danuser, Daniel Madani (all Corporate / M&amp;A) and Urs Stürmer (Competition, Regulatory).

Homburger advises Liberty Global on successful settlement of public tender offer for Sunrise

On October 28, 2020, Winemaker World SA (Winemaker) launched its digital marketplace for wine connoisseurs and discoverers. The digital marketplace enables direct encounters between winemakers and wine lovers.
Winemaker&#8217;s first goal is to create an experience on winemaker.com that is as close as possible to a real visit to the wineries. Winemaker&#8217;s second goal is to significantly increase the share of direct sales of wine and thus create a platform for winemakers to find new customers.
Homburger AG acted as a legal counsel to Winemaker in connection with the setting-up of its business. The Homburger team was led by partners Claude Lambert (Corporate / M&amp;A), Luca Dal Molin (IP / IT) and Reto Heuberger (Tax) and included associates Karin Mattle (Corporate / M&amp;A), Laetitia Fracheboud (Tax), Kirsten Schmidt (IP / IT) and Francesco Bernasconi (Corporate / M&amp;A) and junior associate Vincent Croisier (Corporate / M&amp;A).

Homburger advised Winemaker World in the set-up of its digital marketplace

Capital Markets

On August 12, 2020, Liberty Global plc announced that it plans to acquire 100% of Sunrise Communications Group AG (Sunrise) via an all-cash public tender offer for all publicly held shares of Sunrise, valuing Sunrise&#8217;s equity at CHF 5.0 bn. Sunrise&#8217;s board of directors has announced that it has unanimously resolved to recommend the offer. Freenet AG, Sunrise&#8217;s largest shareholder with 24.4% of the capital, has agreed to tender its shares into the offer. The offer is expected to be launched before end of August, 2020.
Homburger AG is advising Liberty Global on the transaction. The Homburger team is led by partners Daniel Daeniker and Daniel Hasler (Corporate / M&amp;A) and comprises partners Richard Stäuber, Franz Hoffet (both Competition / Regulatory), Stefan Oesterhelt (Tax), Luca Dal Molin and Roman Baechler (both IP / IT), counsel Micha Fankhauser (Corporate / M&amp;A), associates Daniel Häusermann, Karin Mattle, Mirko Stiefel and Stefan Luginbühl (all Corporate / M&amp;A), Yves Bianchi and Jonas Krull (both Competition / Regulatory), David Borer (Capital Markets), Marc Vogelsang and Raphaël Fellay (both Tax), Kirsten Schmidt (IP / IT), as well as junior associates Cédric Berger, Géraldine Danuser and Daniel Madani (all Corporate / M&amp;A).

Karin
Mattle

Responsible Business Initiative Rejected

Homburger advises Liberty Global on successful settlement of public tender offer for Sunrise

Homburger advised Winemaker World in the set-up of its digital marketplace

Homburger advises Liberty Global in its planned public tender offer for Sunrise

The Shareholder Rights and Activism Review: Switzerland

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KarinMattle

Responsible Business Initiative Rejected

Homburger advises Liberty Global on successful settlement of public tender offer for Sunrise

Homburger advised Winemaker World in the set-up of its digital marketplace

Homburger advises Liberty Global in its planned public tender offer for Sunrise

The Shareholder Rights and Activism Review: Switzerland

Join the Team

Karin Mattle

Career

Languages

Bar Registration

Teams

Karin
Mattle