10 March 2021

CO-CSR-Report - article 964bis CO

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ESG: When must a CO-CSR-Report (report on non-financial matters) be submitted for the first time?

When must a CO-CSR-Report (report on non-financial matters) be submitted for the first time?

With the rejection of the corporate responsibility initiative, the indirect counter-proposal comes into play, which introduces new mandatory reporting obligations in the Code of Obligations and in criminal law. Depending on the size and the sector of the company, it will have to account for environmental concerns, social concerns, employee concerns, respect for human rights, the fight against corruption and compliance with due diligence obligations for minerals and metals originating from conflict and high-risk areas, as well as for products or services where child labour is suspected.

What is the roadmap?

The vote is not yet legally binding. The Federal Council has not yet been able to pass the necessary resolution on the vote result because appeals against the vote have been filed with the Federal Supreme Court.

With the resolution, the Federal Council orders the publication in the Federal Gazette. The referendum period of 100 days then runs from the date of publication. If there is no referendum request, the Federal Council determines the date of entry into force.

According to the transitional provisions, the new transparency and due diligence obligations under company law (Art. 964 bis-septies CO) apply for the first time to the financial year beginning one year after the entry into force. It is questionable whether this refers to the business year in which the reporting is published in the annual report or to the business year on which the report is made. According to information from the Federal Office of Justice, the latter is the case.

In concrete terms, this means the following:

The implementing provisions are currently being drafted and, according to the Federal Office of Justice's assessment, the law can probably enter into force by the end of 2021. Assuming that the financial year and the calendar year of the company coincide, the first financial year covered, which begins 1 year after the entry into force, would thus be the year 2023 (reporting period). The board of directors must report on this business year for the first time. The report must be approved by the general meeting. The first report is therefore expected to be issued by the board in the first half of 2024 and to be approved by the ordinary general meeting in 2024.

Attention criminal law (Art. 325ter StGB): If the board fails to report or provides false information or does not comply with the legal reporting obligations, the members of the board will be punished.

The ESG team of MME Legal Tax Compliance supports you in the various aspects of reporting. Boards of directors, board secretaries, legal counsel and sustainability and compliance managers face major challenges. To get started, we recommend our tailor-made structured workshop at a fixed price as well as our article on immediate measures.