<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

I.  Responsible Business Initiative
The popular initiative «For responsible businesses – to protect people and the environment» known as the Responsible Business Initiative (the Initiative) seeks to introduce a new article 101a to the Fed­eral Constitution that comprises the following key requests for companies with registered office, cen­tral administration or principal place of business in Switzerland (Swiss Companies):
&#8211; Swiss Companies have to respect interna­tionally recognized human rights and interna­tional environmental standards in Switzer­land and abroad and ensure that companies under their (actual) control do the same.
&#8211; Swiss Companies have to carry out appropriate due diligence with respect to risks to hu­man rights and the environment by identifying actual and potential impacts, taking measures to prevent and cease violation, and reporting on such measures. These obliga­tions extend to controlled companies as well as all business relationships.
&#8211; Swiss Companies are liable for damage caused by companies under their control by violation of internationally recognized human rights and international environmental stand­ards in the course of business, unless they prove to have complied with their due dili­gence obligations.
Although the Federal Council supports the core re­quests of the Initiative, it concluded that the Initia­tive went too far and would weaken Switzerland as a business hub. The Federal Council therefore pro­posed to submit the Initiative to the Swiss voters with the recommendation to reject it, without mak­ing a (direct or indirect) counter-proposal.
 II.  Counter-Proposal
The National Council had initially supported an in­direct counter-proposal that would have imple­mented the main elements of the Initiative on a statutory level, subject to limited modifications. During the ensuing debate in the Swiss Parlia­ment, the Federal Council announced its support for reporting obligations on compliance with human rights and environmental standards abroad. The Council of States then adopted a second indirect counter-proposal that, following settlement of dif­ferences between the two chambers, resulted in the final indirect counter-proposal approved by the Swiss Parliament on June 19, 2020 (the Counter-Proposal).
The key elements of the Counter-Proposal are:
Non-Financial Reporting Obligations
Companies of public interest (i.e., public compa­nies as well as banks, insurance companies and other supervised companies in the financial sec­tor), which 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 in a separate report. 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 and impact of its activity on environmental (incl. CO2 targets), social, em­ployee, human rights and anti-corruption matters. According to a non-exhaustive list, the report has to include a description of (i) the business model, (ii) policies pursued (incl. due diligence applied), (iii) measures taken and assessed, (iv) main risks resulting from the Group&#8217;s own operations and, where relevant and proportionate, from its busi­ness relationships, products or services, and (v) the main non-financial key performance indica­tors, in each case with respect to such matters.
In accordance with the principle of comply or ex­plain, a reporting company may choose 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 or the standards of the Global Reporting Ini­tiative (GRI) or others.
The report is subject to approval by the board of di­rectors (responsible for the substantive review) and, like the annual financial statements, by the general meeting of shareholders. The non-financial report does not need to be audited.
Due Diligence Obligations in Connection with Conflict Minerals and Child Labor
Swiss Companies that (i) import or process miner­als or metals containing tin, tantalum, tungsten or gold from conflict or high-risk areas, or (ii) offer products or services where there are reasonable grounds to suspect that child labor was involved, are subject to special due diligence and related re­porting obligations with respect to their supply chain. Under certain circumstances, the Federal Council may define exceptions.
The due diligence obligations provide for a five-stage procedure starting with the implementation of a management system with a defined supply chain policy and a system to trace back the supply chain. Companies have to identify and assess ac­tual and potential risks of adverse impacts in their supply chain and implement a risk management plan with measures to prevent or mitigate such risks. Finally, they are required to issue an annual report on the compliance with these obligations. Enterprises importing or processing minerals or metals must also engage an independent third party to carry out audits regarding the compliance with these obligations.
Fines for Violation of Reporting Obligations
Non-compliance with the obligations set out in the Counter-Proposal 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.
III. Outlook
The Initiative committee has already made clear that it does not consider the Counter-Proposal ap­propriate and will therefore not withdraw the Initia­tive. Swiss voters will vote on the Initiative on No­vember 29, 2020. If accepted, the Initiative would still have to be implemented on a statutory level. The Counter-Proposal then becomes irrelevant. If rejected, the Counter-Proposal would come into ef­fect (subject to a referendum). The reporting and due diligence obligations would then need to be observed for the first time with respect to the finan­cial year commencing one year after the entry into effect.
Irrespective of the outcome of the popular vote, Swiss companies operating internationally are re­commended to start preparing for compliance with additional statutory obligations with respect to hu­man rights and environmental standards in one form or another in the near future.

ESG Reporting Obligations

Corporate / M&A

Healthcare / Life Sciences

IP / IT

Noema Pharma

On March 7, 2023, Noema Pharma AG announced that it has successfully closed an oversubscribed Series B financing round, raising CHF 103 m (approx. USD 112 m) from new and existing investors. The round was co-led by the European healthcare focused investment firms Forbion and Jeito Capital. UPMC Enterprises and an additional new investor joined existing investors Sofinnova Partners, Polaris Partners, Gilde Healthcare and Invus to complete the round.
Noema Pharma is a clinical-stage biotech company targeting debilitating central nervous system (CNS) disorders characterized by imbalanced neuronal networks. The proceeds of the Series B financing will be used to advance Noema Pharma&#8217;s clinical-stage assets.
Homburger AG advises Noema Pharma AG as transaction counsel in this Series B financing round. The Homburger team comprised Andreas Müller, Margrit Marti, Timo Hasler, Thierry Burckhardt, Pepe Hünerwadel and Carolina Rodriguez (all Corporate / M&amp;A; Healthcare / Life Sciences), Luca Dal Molin (IP / IT; Healthcare / Life Sciences) as well as Stefan Oesterhelt and Laetitia Fracheboud (Tax).

Homburger advises Noema Pharma AG on its USD 112 m Series B financing round

Competition

Employment and Executive Compensation

On December 13, 2022, Tandem Diabetes Care, Inc. (NASDAQ: TNDM), a global insulin delivery and diabetes technology company, announced that it has entered into a definitive agreement to acquire AMF Medical SA, the privately held Swiss developer of the Sigi™ Patch Pump, an insulin delivery solution.
The consideration includes a previous strategic investment of CHF 8.0 m, an upfront cash payment of CHF 62.4 m, and additional contingent earnout payments of up to CHF 129.6 m, in aggregate, payable upon the achievement of certain milestones. The transaction is subject to the satisfaction of customary closing conditions and is expected to close in January 2023.
Homburger, who also advised AMF Medical on its previous financing rounds, acts as transaction counsel to AMF Medical SA and its shareholders. The Homburger team comprises Andreas Müller, Margrit Marti and Léonard Aeschlimann Perales (all Corporate / M&amp;A; Healthcare / Life Sciences), Luca Dal Molin and Joel Fink (both IP / IT; Healthcare / Life Sciences), Stefan Oesterhelt, Kevin Müller and Philippe Weber (all Tax), Richard Stäuber and Allegra Arnold (both Competition; Healthcare / Life Sciences), and Marc Bircher and Sebastian Wyler (both Employment and Executive Compensation).

Homburger advises AMF Medical and its shareholders on the sale of AMF Medical to Tandem Diabetes Care

Capital Markets

Credit Suisse

On October 27, 2022, Credit Suisse Group AG announced that its Board of Directors will propose to an Extraordinary General Meeting to be held on November 23, 2022, to approve two separate share capital increases: a first capital increase of an expected CHF 1.76 bn through the issuing of new shares to a number of qualified investors, including Saudi National Bank, where preemptive subscription rights of existing shareholders are excluded, and a second capital increase of approximately CHF 2.24 bn through a rights offering to existing shareholders. The shares to be issued in the rights offering are underwritten, subject to customary conditions, by a syndicate of banks in the amount of up to CHF 4 bn should the first capital increase not be fully implemented, e.g. if the shareholders of Credit Suisse Group AG approve the rights offering but not the first capital increase with exclusion of preemptive rights. Through the proposed share capital increases, Credit Suisse Group AG intends to raise CHF 4.0 bn to further strengthen the Group’s capital base and support its strategic transformation.
Homburger advises Credit Suisse Group AG in the structuring of the capital increase, on the transaction documentation, and on all Swiss law regulatory, tax and transactional aspects of the issuance, offering and listing of the new shares.
The Homburger team was led by partner Benjamin Leisinger (Capital Markets) and included partners Claude Lambert, Daniel Daeniker and Andreas Müller (all Corporate / M&amp;A), partner Dieter Grünblatt (Tax), lead associate Daniel Hulmann, counsel Lee Saladino and associate Sofiya Shavlak (all Capital Markets), associates Margrit Marti, Claudine Schär, Romain Fakhoury (all Corporate / M&amp;A) and Marc Bircher (Employment and Executive Compensation) as well as junior associate Lars Schöni (Capital Markets).

Homburger advises Credit Suisse Group AG in connection with the share capital increases of CHF 4 bn to further strengthen the Group’s capital base and support its new strategic direction

Margrit
Marti

Homburger advises Noema Pharma AG on its USD 112 m Series B financing round

Homburger advises AMF Medical and its shareholders on the sale of AMF Medical to Tandem Diabetes Care

Homburger advises Credit Suisse Group AG in connection with the share capital increases of CHF 4 bn to further strengthen the Group’s capital base and support its new strategic direction

Responsible Business Initiative Rejected

ESG Reporting Obligations

Nutzbarmachung des neuen Aktienrechts für Private Equity und Venture Capital

ESG reporting and due diligence obligations introduced in Switzerland

KISS und SAFE: Neue Strukturen für Venture Investments

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Margrit Marti

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MargritMarti

Homburger advises Noema Pharma AG on its USD 112 m Series B financing round

Homburger advises AMF Medical and its shareholders on the sale of AMF Medical to Tandem Diabetes Care

Homburger advises Credit Suisse Group AG in connection with the share capital increases of CHF 4 bn to further strengthen the Group’s capital base and support its new strategic direction

Responsible Business Initiative Rejected

ESG Reporting Obligations

Nutzbarmachung des neuen Aktienrechts für Private Equity und Venture Capital

ESG reporting and due diligence obligations introduced in Switzerland

KISS und SAFE: Neue Strukturen für Venture Investments

Join the Team

Margrit Marti

Career

Languages

Bar Registration

Teams

Margrit
Marti