Members meeting

The list specifying the individual topics to be dealt with at a meeting or assembly is called agenda.

The topics which will be treated at a meeting or assembly are called agenda items.

Question

What needs to be taken into account if an association wishes to amend its articles of association?

Answer

An association wants to give itself a new purpose or a new name or now also wishes to gain benefactor members. Changes of this kind require an amendment to the association's articles of association.

Responsibility for any revision to the articles of association lies with the general meeting, with any change possibly requiring a qualified majority of votes. In the case of important amendments to an association's articles of association that are likely to be subject to controversial debate, it is advisable to convene an extraordinary general meeting to address this single topic. The committee provides the members with the proposed amendments together with the invitation within the period stated in the articles of association. In the case of a total revision or in instances in which major changes are to be made, it is advisable to present the amendments synoptically (the currently applicable text is presented opposite the new text).

At the (extraordinary) general meeting, the provisions to be revised are put forward for discussion individually. At the end, an overall vote is held. Changes to the association's name and its purpose must also be communicated to absent members following the (extraordinary) general meeting in the minutes. If a member is not in agreement with the change of purpose, they may declare their withdrawal from the association in accordance with Article 74 of the Swiss Civil Code (ZGB). If the association is entered in the commercial register, changes to its name and purpose must be reported. It is advisable to also inform the association's most important financial backers prior to the distribution of the next annual report.

In a meeting, there may be several motions at different levels on the same topic. The chair of the meeting must arrange the votes on individual motions in the right order. In the vote, one motion is compared to another, and the one which gets the most votes is then compared to the next. Principally, motions that deal with details should be voted on first, main motions are voted on last. The decisions on motions that deal with details are contingency decisions because they depend on the acceptance or rejection of the main motion.

For each main motion, a counter motion may be submitted. Example: A new locality is to be rented (main motion). A counter motion proposes that a property be bought. Both motions are voted on one after the other. The motion that brings together the majority of the votes shall be adopted.

A debate (French débattre: to beat down) is a kind of disputation that, unlike the discussion, follows formal rules and usually is used in preparation for a vote. Debates are a significant element of democracy in associations and they usually take place during general meetings about the agenda items. When conducting a debate, it is important to facilitate lively discussions and not to restrict the members’ freedom to state their positions, yet to respect the time frame for each topic. Active participation by the members expresses a vivid commitment to the association.

At the general meeting, the topics that will be voted on should be openly discussed by the members. Each member has the right to participate in the discussion (debate, participation rights).

Question

Our articles of association state that the invitation to the general meeting must be issued in writing. Are we also allowed to send the invitation via e-mail?

Answer

In order to convene a general meeting in accordance with Article 64 of the Swiss Civil Code (ZGB), the articles of association and/or, where applicable, a certain association practice must be adhered to. If the invitation has been sent by letter until now, a sudden change to e-mail may be challenged under certain circumstances if the invitation doesn't reach all members. The decisive factor is that all individuals who are entitled to participate are made aware of the convocation in good faith and in a timely manner that allows for them to actually participate.

It is therefore advisable to formulate the form of convocation precisely in the articles of association. Various types of convocation are possible: by letter, via e-mail, a notice on the association noticeboard, newspaper publications, as part of association bodies, etc.

The law does not specify a specific form for the exercise of the right to put forward motions, with this also being true for the requesting of an extraordinary general meeting. Unless the articles of association stipulate otherwise, other means are therefore also possible for motions: e-mail, phone, etc.

Question

Our general meeting is taking place next week. A motion from a member has now been received after the deadline stated in the articles of association. The member is proposing that the membership fee amount be left as it is. The committee, on the other hand, is proposing that the membership fee be increased. Are we required to present the member's motion?

Answer

As the business of the "membership fee" has been included under the agenda items, the motion put forward by the member represents a proposal relating to an existing agenda item. The invitation period only applies to motions that request the addition of an agenda item, i.e. relating to a (further) point of business that should be included in the agenda.

The motion that you mention must therefore be put forward and voted on. Members must also have the opportunity to put forward a motion (relating to a scheduled agenda item) at the meeting itself. This is what makes democratic discussions and the formation of opinions at the general meeting possible in the first place.

In the general meeting, motions from the executive committee as well as motions from members are treated. The main motion deals with the main point of a topic, e.g. new premises shall be rented at another location. The counter motion might say that a larger room should be rented. An amendment motion on the main motion would be the request to renovate the existing premises. Counter or amendment motions may be submitted on all motions during the general meeting.

Question

Should the annual/membership fee be included in the agenda items of the general meeting even if it is to remain the same?

Answer

The amount of the membership fee is generally determined by the general meeting. If the exact amount is defined in the articles of association, an increase or reduction can only be implemented by means of an amendment to the articles of association. In such cases, the item of business only has to be added to the agenda items upon a corresponding motion being put forward by the committee or a member.

If the fee amount is not specified in the articles of association, its definition is part of the ordinary business of the general meeting. In such cases, it is advisable to include the "membership fee" agenda item each year. The committee can then, for example, propose that the current fee is maintained. The members can, however, put forward countermotions.

The committee or individual committee members may submit agenda items to the general meeting. The motions of the committee should be sent together with the agenda and the invitation to the general meeting to allow members to prepare for the meeting and put forward their own motions on submitted agenda items. All members have the right to submit motions to the general meeting. A motion either proposes a specific topic for consideration or requires a vote on a particular issue. The articles of association regulate the submission deadline, i.e. they specify a deadline by which the agenda item must be submitted. The right to submit a motion is an important right held by members of an association. A distinction is made between motions that relate to the content of the agenda items (subject motions) or motions that relate to the procedural organisation of the meeting (procedural motions). Counter or amendment motions may be submitted on all motions and agenda items during the general meeting.

Points of order relate to the proceedings of a meeting: changing the order of agenda items, secret ballots, restricting speaking time, aborting a discussion, rejecting business, returning to previously discussed business, postponing or aborting meetings, etc. Points of order made be submitted at any time and are voted upon immediately.

The general meeting must be announced in due time to allow members to attend and prepare for the meeting. The items to be discussed (agenda items) are to be clearly defined to allow members to form an idea about the scope of the topic and decide whether they want to take part in the meeting or not. If a member is excluded from the association, the name of the member concerned must be stated; however, in the case of elections it is not necessary to list the names of the candidates in advance. New candidates may be proposed even during the meeting.

If there are numerous and lengthy interventions at the general meeting, it can be useful to limit the maximum time per speaker. A speaking time restriction may also be required by the participants of a meeting in a procedural motion. The meeting must vote on this motion.

A subject motion relates to the content of an agenda item, in contrast to a procedural motion that relates to the procedure of a meeting.

The articles of association specify a deadline by which members can submit agenda items to the general meeting.

Question

As we have constant disputes due to a fellow committee member, we want to remove him from office. How do we need to proceed?

Answer

Generally speaking, committee members are unable to remove or vote out a colleague themselves. The committee members are elected by the general meeting and only the general meeting has the authority to relieve them of their duties.

Following the passing of a majority resolution within the committee, a motion can be put forward at the general meeting for the colleague in question not to be re-elected. It is, however, down to the general meeting to decide whether to pursue such a motion or not. Whether choosing this path will resolve the conflict situation is another matter. Problems are often not simply tied to a lone individual. It is possible that seeking out the cause of the conflict and holding joint discussions will prove a more promising solution.

The activity report (also called reporting) helps a higher-level body to assess the financial situation of an association and to prepare for the future. The committee gives an account of its activities in the past year to the general meeting. For this purpose, it prepares the annual report and the annual financial statements. The administrative office or the working groups report regularly to the committee. The activity report always has a content-related and a financial component. Together with the controlling reports, it forms the basis for the superior body to assume its responsibilities. The executive committee, for instance, reports to the general meeting on its activities in the past year (annual report and annual financial statements). The administrative office reports regularly to the committee. Activity reports are submitted orally or in writing.

Question

Is it right that the audit report isn't to be voted on? Is it true that following the approval of the annual report a vote is to be held on the audit report and then the annual financial statements?

Answer

The audit report is prepared by an independent person or body. It recommends whether the financial statements should be accepted or rejected and may also contain further recommendations.

A vote is not held on the audit report; it serves as an opinion-forming aid for members with respect to the annual financial statements. If the members are not satisfied with the work of the auditor, they can vote the auditor out and propose somebody else.

Question

It is not specified in our articles of association as to when the minutes of the general meeting have to be sent out. Is it sufficient to enclose these with the next invitation to the general meeting or should they be sent out as soon as possible after the meeting in question?

Answer

There are no legal regulations on the distribution of minutes. If the articles of association do not specify anything in this regard and there are no long-standing, appropriate customs in place, the committee can distribute the minutes as it sees fit.

The benefit of a prompt distribution is that the members - and especially also the absent members - are informed of the relevant resolutions in a timely manner. If the minutes have to be approved by the general meeting, they are referred to as "draft minutes". The timely distribution of the draft minutes following approval by the committee allows for members to be called on to raise any objections they may have. Where necessary, the committee can then present an amended version to be voted on at the next meeting. Under Article 75 of the Swiss Civil Code (ZGB), a member can challenge resolutions that breach the law or the association's articles of association before a competent court within one month of receiving the minutes. This is another reason why early distribution makes sense.  Otherwise, a complaint could still be filed after a year.

If the invitation is sent out via e-mail, the minutes can be attached as an additional document. If the association has an internal area on its website, the document can be stored here and the members informed accordingly.

Conclusion:

• The minutes serve to provide information to members, a fact that speaks in favour of their prompt distribution.
• To ensure that the members can approve the minutes at the general meeting, they need to be familiar with their wording, which represents an argument for distributing the minutes (again) together with the invitation.
• To save paper, it is advisable to make use of electronic options. When doing so, however, consideration has to be given to members who are not electronically networked.
• As a rule, the minutes are signed by both the minute-taker and the chairperson.
• The committee can also govern the distribution of minutes by presenting a corresponding motion to the general meeting. This means that member wishes can be accommodated. This does not require a corresponding provision in the articles of association. Instead, a meeting resolution recorded in the minutes suffices.

Question

Our members live all over Switzerland and in neighbouring foreign countries, for many of them it is not possible to attend the general meeting. Is it admissible to have a general meeting online?

Answer

Members have the right to attend the general meeting and to participate in voting and elections as well as the corresponding discussions. If a Swiss association has members with residence in a foreign country, it must ensure that these members can make use of their rights. As a supplement or substitute for a physical meeting, an online meeting can be held via an online conference room (e.g. Skype, Facetime, etc.) or via a live stream from the meeting with a chat option for discussion and voting. This is admissible provided all members are invited in time, have access to the Internet and receive the necessary documents and access data. A further prerequisite is that the articles of association provide for online meetings.

Question

We would like to generate interest among potential new members for our association. We have now come up with the idea of making our next general meeting accessible to the public and inviting interested parties and media professionals to the occasion. Are we allowed to open up the general meeting to non-members?

Answer

There are no legal provisions in this respect unless something is governed under your articles of association or regulations.
Otherwise, the association is free to also invite non-members. This can be quite useful. Potential members, relatives, representatives of authorities or financial backers, specialists, media professionals - they can all be invited as guests. It is advisable to provide guests with allocated seating so that it is clear who is and who isn't permitted to vote.

For invitations of this kind, the event should be sufficiently attractive for the guests and be significant in terms of its content. Nobody wants to simply listen to items of business relating to the association's articles of association. An invitation with an interesting and varied programme is helpful. And, of course, be sure to extend a special welcome to the guests at the meeting.

Members shall be invited to the general meeting in due time, usually in writing. The articles of association may also provide for the invitations to be sent out by e-mail. As a rule, the articles of association set a deadline for sending out the invitation (announcement or convocation period). Where no deadline is stipulated in the articles of association, the invitation must nevertheless be sent out in due time to allow members to attend the meeting. The law speaks of proper announcement (usually two to three weeks are enough). Together with the invitation, the agenda shall be communicated. The announcement allows members to prepare for the meeting and to decide whether to attend the meeting or not. In many cases, the articles of association specify a deadline for the submission of agenda items.

Question

Our articles of association state that the invitation to the general meeting must be issued in writing. Are we also allowed to send the invitation via e-mail?

Answer

In order to convene a general meeting in accordance with Article 64 of the Swiss Civil Code (ZGB), the articles of association and/or, where applicable, a certain association practice must be adhered to. If the invitation has been sent by letter until now, a sudden change to e-mail may be challenged under certain circumstances if the invitation doesn't reach all members. The decisive factor is that all individuals who are entitled to participate are made aware of the convocation in good faith and in a timely manner that allows for them to actually participate.

It is therefore advisable to formulate the form of convocation precisely in the articles of association. Various types of convocation are possible: by letter, via e-mail, a notice on the association noticeboard, newspaper publications, as part of association bodies, etc.

The law does not specify a specific form for the exercise of the right to put forward motions, with this also being true for the requesting of an extraordinary general meeting. Unless the articles of association stipulate otherwise, other means are therefore also possible for motions: e-mail, phone, etc.

Question

Our general meeting is taking place next week. A motion from a member has now been received after the deadline stated in the articles of association. The member is proposing that the membership fee amount be left as it is. The committee, on the other hand, is proposing that the membership fee be increased. Are we required to present the member's motion?

Answer

As the business of the "membership fee" has been included under the agenda items, the motion put forward by the member represents a proposal relating to an existing agenda item. The invitation period only applies to motions that request the addition of an agenda item, i.e. relating to a (further) point of business that should be included in the agenda.

The motion that you mention must therefore be put forward and voted on. Members must also have the opportunity to put forward a motion (relating to a scheduled agenda item) at the meeting itself. This is what makes democratic discussions and the formation of opinions at the general meeting possible in the first place.

Pursuant to the Swiss Federal Council’s Ordinance 3 on Measures to Combat the Coronavirus, associations were permitted to hold General Meetings online or pass resolutions in writing until 31.12.2022, even if this is not provided for in the Articles of Association. Pursuant to the Ordinance, it was not permitted to combine the two different methods of implementation. These exemptions granted by the Federal Council ceased to apply on 01.01.2023; General Meetings must now again be held in accordance with Articles of Association. This means that General Meetings are allowed to be held online or in hybrid format if permitted explicitly by the Articles of Association.

The general meeting must be announced in due time to allow members to attend and prepare for the meeting. The items to be discussed (agenda items) are to be clearly defined to allow members to form an idea about the scope of the topic and decide whether they want to take part in the meeting or not. If a member is excluded from the association, the name of the member concerned must be stated; however, in the case of elections it is not necessary to list the names of the candidates in advance. New candidates may be proposed even during the meeting.

Pursuant to the Swiss Federal Council’s Ordinance 3 on Measures to Combat the Coronavirus, associations were permitted to hold General Meetings online or pass resolutions in writing until 31.12.2022, even if this is not provided for in the Articles of Association. Pursuant to the Ordinance, it was not permitted to combine the two different methods of implementation. These exemptions granted by the Federal Council ceased to apply on 01.01.2023; General Meetings must now again be held in accordance with Articles of Association. This means that resolutions may be passed in writing if permitted explicitly by the Articles of Association. If there is no corresponding provision in the Articles of Association, the following applies: “The written consent of all members to a proposal is equivalent to a resolution passed by the association’s General Meeting.” This means that all members must take part in and consent to the written vote.

The activity report (also called reporting) helps a higher-level body to assess the financial situation of an association and to prepare for the future. The committee gives an account of its activities in the past year to the general meeting. For this purpose, it prepares the annual report and the annual financial statements. The administrative office or the working groups report regularly to the committee. The activity report always has a content-related and a financial component. Together with the controlling reports, it forms the basis for the superior body to assume its responsibilities. The executive committee, for instance, reports to the general meeting on its activities in the past year (annual report and annual financial statements). The administrative office reports regularly to the committee. Activity reports are submitted orally or in writing.

Question

Is it right that the audit report isn't to be voted on? Is it true that following the approval of the annual report a vote is to be held on the audit report and then the annual financial statements?

Answer

The audit report is prepared by an independent person or body. It recommends whether the financial statements should be accepted or rejected and may also contain further recommendations.

A vote is not held on the audit report; it serves as an opinion-forming aid for members with respect to the annual financial statements. If the members are not satisfied with the work of the auditor, they can vote the auditor out and propose somebody else.

Discharge refers to a discharge from liability. By approving the annual report and the annual accounts, the general assembly grants discharge from liability for the administration of the association to the executive committee or the individual members of the executive committee. From this moment on, the executive committee is no longer liable to the association for its actions; however, this applies only to facts of which the members are aware; it does not apply to third-party liability claims, for which the association or the executive committee can be held accountable if need be.

Question

Can a new committee be elected if the old committee has not yet been discharged?

Answer

Following the approval of the annual financial statements, the general meeting grants discharge to the current committee. This means that from this point onwards the discharged committee is no longer liable for any debt. Instead, liability is assumed by the association in accordance with the provisions of the articles of association. Although a discharge resolution is not required by law, it is generally customary within the framework of the general meeting's supervisory duty in accordance with Article 65(2) of the Swiss Civil Code (ZGB) and is provided for in most associations' articles of association.

If the association's articles of association do not contain any provisions to contrary, it is also possible to elect a new committee without discharging the previous committee members who have stepped down. The former committee is no longer in office. Under civil law, however, any claims for damages can also be asserted against a committee that has already stepped down.
In the interest of ensuring the reasonable continuation of the association's activities, it is advisable for any claims for damages against the former committee members to be asserted in a quick and timely manner so that the issue of liability is clarified.

The executive committee is liable to the association for diligent and correct management. Once the general meeting has granted the discharge (relief of the committee), the committee is relieved from its liability for the past year. However, this only applies to those activities that have been disclosed to the general meeting. By granting the discharge, the general meeting declares to waive any liability claims against the entire committee or individual committee members. If committee members intentionally or negligently harm the association (culpable violation of their due diligence), they are personally liable for the damage. There are two special cases: liability for OASI contributions and VAT. If an association has employees, it is liable for the payment of the contributions according to article 52, OASI law. If it is subject to VAT, it is liable for the taxes due. The committee members are also personally liable if they cannot relieve themselves, which is difficult in this particular case.

Question

As our association finds itself at somewhat of a standstill, we have taken the decision within the committee to spend money on new flyers, a website and a special campaign, increasing the budget accordingly.  We are convinced that the association can afford this rather steep additional expenditure, but do not know whether the members will also see things the same way.
As the chair of the meeting, how should I proceed if the budget is rejected at the general meeting?

Answer

As authority for approving the budget at your association lies with the general meeting, the committee and the chair of the meeting need to ensure that they are well prepared and equipped with good arguments. It is also important that the entire committee is behind the proposal and that the relevant figures are made transparent, meaning that they are comprehensible for the members. It is also helpful to present a longer-term financial plan.

The members can put forward amendments to the proposed budget; it is not a matter of all or nothing. If the passing of the budget appears to be at risk, the chair of the meeting can call on the members or individual voters to make targeted requests for deletion or, where necessary, suggest (tolerable) reductions him- or herself.
Otherwise, the association's democratic rules have to be adhered to.

Question

Our committee has taken the decision to pay its members an attendance fee in future. Do we require the approval of the general meeting for this?

Answer

The association's articles of association govern who within the association has what authority. If it is stated therein, for example, that the committee is only entitled to compensation for actual expenses, it cannot pay its members attendance fees unless the payment takes the form of a flat fee for any expenditure incurred. If there is no such regulation in place and the general meeting decides on the budget, the amount must be listed there. This allows the members to exert influence during the budget approval process. It is possible that the committee also has a fixed amount at its disposal about which it can decide itself.

If no reference is made in either the articles of association or the relevant regulations about the authority for spending, it is best if the committee presents compensation and expense regulations to the general meeting for approval.

Please note that attendance fees represent compensation for performed work, meaning that the recipient also has to pay tax on them, i.e. the association has to prepare a salary statement. If the compensation totals more than CHF 2300 per person per year, the relevant social insurance contributions must also be settled (see the work aid "Expenses, expense regulations, compensation" in this regard).

Disruptive behaviour during the general meeting is called obstruction.

Question

Our choir is planning to issue a brochure to mark its upcoming anniversary and gained approval from the general meeting for a budget of CHF 500. It has now materialised, however, that the costs have been completely underestimated. Do we now have to have the members vote again on a higher amount?

Answer

By voting on the issue again at an extraordinary general meeting, the committee is playing things safe. You can better judge for yourself whether the ordinary general meeting would approve of a corresponding cost overrun upon being presented with the accounts. Either way, the committee is well advised to inform the members in a timely and transparent fashion.

In the rules of procedure, the committee sets up rules that define its tasks and competences as well as the responsibilities of the entire committee, its different functions and its individual members. Depending on what is stipulated in the articles of association, the rules of procedure may also be issued by the general meeting.

In general meetings or committee meetings, occasionally subject matters are discussed which do not have to be approved by members. It is sufficient if members are informed about such matters. Any subsequent discussions or decisions (voting) will take place in later meetings. Example: Depending on the articles of association, the general assembly takes note of the budget or approves the budget.

Election by acclamation (e.g. clapping) should only be used in completely uncontested elections. For example, acclamation can be used during the re-election of an established member of the executive committee (or the entire committee re-elected as a whole). The proposal to elect by acclamation simultaneously indicates that the election is uncontested and that the person or persons should thus receive special acknowledgement. If election by acclamation is proposed, it is still possible to require that votes be counted individually via a point of order. Counting favourable votes can also show esteem.

The members of the committee are elected for a certain term of office (in accordance with the articles of association) at the general meeting and, as a group, manage the affairs of the association. Jointly and individually, they are responsible for their activities on behalf of the committee.

Question

I put myself forward for the vacant position of chairperson but I am not a committee member. Does the general meeting first have to elect me to the committee and then elect me as chairperson in a second vote? In the articles of association, it is stated that the general meeting elects the chairperson and the other committee members.

Answer

Unless stated otherwise in the articles of association, the members can elect you directly as chairperson. However, if an association's committee is self-constituting (which isn't the case at your association), the general meeting votes one or more people to the committee. This later elects a chairperson from within its ranks at its constituting session.

Electing the executive committee as a whole, i.e. multiple persons simultaneously, should be used very sparingly and only in completely uncontested elections. For example, it can be combined with election by acclamation during the re-election of an established executive committee to show that the election is truly uncontested. If election as a whole is proposed, it is still possible to require that persons are elected individually via a point of order. However, some members might be apprehensive about initiating a point of order because they do not want to be viewed as mistrustful. Counting favourable individual votes can also show esteem. Under no circumstances may election as a whole be used to prevent controversial candidates from being challenged.

Question

Can a new committee be elected if the old committee has not yet been discharged?

Answer

Following the approval of the annual financial statements, the general meeting grants discharge to the current committee. This means that from this point onwards the discharged committee is no longer liable for any debt. Instead, liability is assumed by the association in accordance with the provisions of the articles of association. Although a discharge resolution is not required by law, it is generally customary within the framework of the general meeting's supervisory duty in accordance with Article 65(2) of the Swiss Civil Code (ZGB) and is provided for in most associations' articles of association.

If the association's articles of association do not contain any provisions to contrary, it is also possible to elect a new committee without discharging the previous committee members who have stepped down. The former committee is no longer in office. Under civil law, however, any claims for damages can also be asserted against a committee that has already stepped down.
In the interest of ensuring the reasonable continuation of the association's activities, it is advisable for any claims for damages against the former committee members to be asserted in a quick and timely manner so that the issue of liability is clarified.

Question

Is it allowed for an individual who is not a member to be elected to an association's committee? The members of our association are exclusively legal entities. A suitable individual would make themselves available to serve on the committee but does not belong to any of the member associations.

Answer

This example shows that there can be good reasons for electing a non-member to the association committee. As far back as 1947, the Federal Supreme Court ruled in a corresponding judgement that, for reasons of association autonomy and practical life, natural persons who are not association members may also be elected to the committee.

As this tends to be an exception in practice, it is recommended to explicitly mention in the articles of association that non-members may serve on the committee.

Question

At the general meeting, I am to be confirmed as chairperson as well as another four committee members in their respective roles. In addition, a named new committee member is to be elected. The election is expected to be uncontested. How can this election be conducted in the most efficient and correct manner?

Answer

There are no legal provisions with respect to exactly how elections are to be conducted. Of course, any regulations laid down in the articles of association must be observed and it must be clear who is elected and who is not.

The following practices have proven successful:

• It is advantageous to first confirm the members of the committee individually or as a whole (including the chairperson) and then to confirm the chairperson individually in his or her office.
• It makes sense to have a new member elected individually. Individual elections give more weight to the person in question. If there is no other nomination, however, an individual new member can also be elected together with the remaining members.
• During the election of the chairperson, the deputy temporarily assumes the position of chair. Responsibility for the remaining elections is assumed by the elected chairperson.

The committee is elected by the general meeting, either in an election of the entire committee as a group or of each committee member individually. Some articles of association stipulate that the chairperson be elected by the meeting individually and the remainder of the committee as a group. In this case, the executive committee constitutes itself with the exception of the chairperson, i.e. it distributes the responsibilities internally (constitution of the committee). Depending on the articles of association, persons that are not members of the association may be elected to the committee or be represented based on subsidy regulations of the public sector, for instance, if a nursery receives subsidies from the municipality and a representative of the municipality is delegated to the committee (one seat ex officio).

The election of the executive bodies, above all the committee, is a central item in the general meeting. The elections should be well prepared: Should the future members of the committee be elected individually or should they be elected together as a group? Should they individually present their plans for the association’s future or is the entire committee with a joint programme for the upcoming year up for election? Are they elected for individual functions or can the committee itself decide on the division of responsibilities? Are the candidates undisputed or can other persons be nominated by members?

The – usually unpaid – activity in the committee of an association is called an honorary office. Persons are elected for a certain period and for certain tasks to an (honorary) office. Honorary work is done during leisure time. Apart from the context of associations, there are honorary offices in other areas, e.g. in public authorities, schools or churches. In German-speaking countries outside Switzerland (Germany, Austria), the term is used for the entire range of voluntary work.

In contrast to the secret ballot, the open ballot or poll shows clearly who is voting for whom or for what. This should be the norm in associations.

Question

Our small gymnastics association is having difficulty finding new committee members. Of our active gymnasts, almost all have already held office at one time or another. One committee member has now had the idea of asking an individual who isn't a gymnast at all, but whose children are in the squad. Can a non-active member be elected to the committee? And does this even make sense?

Answer

There is nothing standing in the way of this plan unless it is stated in your articles of association that only active association members can be elected to the committee. After all, you are not looking for somebody to do a cartwheel or perform as many squats as possible. Rather, you want to find somebody who is capable of co-leading an association and who can fit into its committee. It is also possible that you are looking to fill a specific area of responsibility, for example somebody to oversee the actuarial or financial side of things or even to take on the role of chairperson.
Good minute-takers, financial experts and leadership figures can also be found outside the ranks of the active gymnastics team. A committee member should, of course, have an interest in the association's activities, but a somewhat external perspective can surely be of no detriment to the association.

Question

We are looking for new committee members in the association. A married couple have expressed their interest. Is it generally allowed for related individuals to sit on the same committee?

Answer

Yes, this is allowed. In specific cases, it can be justified to ask whether family representation is appropriate or not. Keywords to consider here: synergies, short information paths, concentration of power, etc.

Ultimately, it is the members who decide with their vote whether or not they want to have people from the same family on the committee. It must be noted that the requirement to abstain from voting on legal transactions or legal disputes with the association also applies to relatives in accordance with Article 68 of the Swiss Civil Code (ZGB) Not least for this reason, it makes little sense for the committee to exclusively or primarily comprise family members. It is then almost impossible for resolutions to be passed in an orderly fashion.

Departing committee members must be adequately replaced, which is not always easy. It is not the outgoing committee member who has to look for a successor, but the remaining committee members. They must submit a nomination to the general assembly. It helps to clarify in advance which requirements the new member of the committee should meet and which experiences, competencies and abilities are expected for the new member to be a good match for the committee. The search for a new committee member is a long-term process: It is advisable to start looking for a possible candidate early on.

The activity in the committee is usually an honorary office and is performed without remuneration. Compensation for expenses is permissible and advisable.

Question

As we have constant disputes due to a fellow committee member, we want to remove him from office. How do we need to proceed?

Answer

Generally speaking, committee members are unable to remove or vote out a colleague themselves. The committee members are elected by the general meeting and only the general meeting has the authority to relieve them of their duties.

Following the passing of a majority resolution within the committee, a motion can be put forward at the general meeting for the colleague in question not to be re-elected. It is, however, down to the general meeting to decide whether to pursue such a motion or not. Whether choosing this path will resolve the conflict situation is another matter. Problems are often not simply tied to a lone individual. It is possible that seeking out the cause of the conflict and holding joint discussions will prove a more promising solution.

Question

In our articles of association, no fixed number of committee members is defined and no required majority is specified for elections. In such cases, does a contentious figure who is standing for election need to be elected with an absolute majority of votes?

Answer

The question of required votes arises on a general basis and not just in connection with contentious figures. If the articles of association do not explicitly govern the required share of votes (qualified majority), Article 67(II) of the Swiss Civil Code (ZGB) applies: "Resolutions require a majority of the votes of the members present". An absolute majority is therefore required. This is calculated on the basis of the number of members in attendance. All votes need to be counted, including invalid votes and abstentions. Example: if 100 members are in attendance, an absolute majority is achieved with 51 votes. Should an uneven number of members be in attendance, the figure required for an absolute majority is determined by dividing the number of members in attendance by two and rounding this figure up to the next whole number.

In many cases, the articles of association of associations state that decisions can be made with a relative or simple majority of votes: irrespective of the number of members in attendance, a motion is approved if it receives more votes in favour than against.

Votes can be in favour of or against a specific motion. Those who want to vote neither yes nor no can abstain from voting. For an absolute majority, abstentions are counted, too. However, they are not counted for relative majorities.

Question

What needs to be taken into account if an association wishes to amend its articles of association?

Answer

An association wants to give itself a new purpose or a new name or now also wishes to gain benefactor members. Changes of this kind require an amendment to the association's articles of association.

Responsibility for any revision to the articles of association lies with the general meeting, with any change possibly requiring a qualified majority of votes. In the case of important amendments to an association's articles of association that are likely to be subject to controversial debate, it is advisable to convene an extraordinary general meeting to address this single topic. The committee provides the members with the proposed amendments together with the invitation within the period stated in the articles of association. In the case of a total revision or in instances in which major changes are to be made, it is advisable to present the amendments synoptically (the currently applicable text is presented opposite the new text).

At the (extraordinary) general meeting, the provisions to be revised are put forward for discussion individually. At the end, an overall vote is held. Changes to the association's name and its purpose must also be communicated to absent members following the (extraordinary) general meeting in the minutes. If a member is not in agreement with the change of purpose, they may declare their withdrawal from the association in accordance with Article 74 of the Swiss Civil Code (ZGB). If the association is entered in the commercial register, changes to its name and purpose must be reported. It is advisable to also inform the association's most important financial backers prior to the distribution of the next annual report.

In general, a distinction is made in polls or elections between an absolute, relative (or simple) and qualified majority. However, the terms are not used consistently. The articles of association determine what type of majority should apply and what the basis for its calculation is. In the absence of a corresponding provision in the articles of association, an absolute majority, i.e. the majority of the votes present (for example, 21 votes if 40 members are eligible to vote) is required. In this case, all votes must be counted, including invalid votes and abstentions. An absolute majority can also be calculated based on the valid votes cast. In the case of a relative (or simple) majority, a motion is adopted if the number of votes in favour exceeds the number of votes against the motion; abstentions are not counted. A qualified majority, on the other hand, is provided for particularly important matters (such as changes to the articles of association) and requires more weighty approval than just the majority, e.g. two thirds or three quarters of valid votes. The articles of association may also determine that very important votes or circular resolutions shall be passed unanimously. Here, too, it should be determined whether unanimity refers to the members present or to all members (universal meeting). The articles of association should also regulate what to do in the event of tied votes. In most cases, the chairperson shall cast the deciding vote. If this is not the case, the motion is rejected because it has not achieved a majority.

Question

Our articles of association state that the approval of two-thirds of members is required for the dissolution of the association. Is it enough if two-thirds of the members present at the general meeting approve the dissolution?

Answer

As is stated in your articles of association, it is clear that all members of the association are meant and not just those in attendance. If an association is considering dissolution, it is often difficult to mobilise enough members and the high quorum can prove to be an almost insurmountable hurdle. The breach of the articles of association - as this would be if only the number of members in attendance was to be taken into account - could serve as a reason for someone to appeal the decision.

In order to handle the matter correctly from a legal perspective, the relevant article in the articles of association would have to be amended at the next (possibly extraordinary) general meeting. At a subsequent general meeting, the dissolution of the association can then be correctly decided on. Both meetings can be held successively. It is important that you communicate how you plan to proceed to members in good time so as not to provoke any surprises. The members should have time to consider the dissolution and the committee should be able to gauge what the mood is. After all, the general meeting is the most senior body of every association and only it can decide on the dissolution.

Question

In our articles of association, no fixed number of committee members is defined and no required majority is specified for elections. In such cases, does a contentious figure who is standing for election need to be elected with an absolute majority of votes?

Answer

The question of required votes arises on a general basis and not just in connection with contentious figures. If the articles of association do not explicitly govern the required share of votes (qualified majority), Article 67(II) of the Swiss Civil Code (ZGB) applies: "Resolutions require a majority of the votes of the members present". An absolute majority is therefore required. This is calculated on the basis of the number of members in attendance. All votes need to be counted, including invalid votes and abstentions. Example: if 100 members are in attendance, an absolute majority is achieved with 51 votes. Should an uneven number of members be in attendance, the figure required for an absolute majority is determined by dividing the number of members in attendance by two and rounding this figure up to the next whole number.

In many cases, the articles of association of associations state that decisions can be made with a relative or simple majority of votes: irrespective of the number of members in attendance, a motion is approved if it receives more votes in favour than against.

Question

What needs to be taken into account if an association wishes to amend its articles of association?

Answer

An association wants to give itself a new purpose or a new name or now also wishes to gain benefactor members. Changes of this kind require an amendment to the association's articles of association.

Responsibility for any revision to the articles of association lies with the general meeting, with any change possibly requiring a qualified majority of votes. In the case of important amendments to an association's articles of association that are likely to be subject to controversial debate, it is advisable to convene an extraordinary general meeting to address this single topic. The committee provides the members with the proposed amendments together with the invitation within the period stated in the articles of association. In the case of a total revision or in instances in which major changes are to be made, it is advisable to present the amendments synoptically (the currently applicable text is presented opposite the new text).

At the (extraordinary) general meeting, the provisions to be revised are put forward for discussion individually. At the end, an overall vote is held. Changes to the association's name and its purpose must also be communicated to absent members following the (extraordinary) general meeting in the minutes. If a member is not in agreement with the change of purpose, they may declare their withdrawal from the association in accordance with Article 74 of the Swiss Civil Code (ZGB). If the association is entered in the commercial register, changes to its name and purpose must be reported. It is advisable to also inform the association's most important financial backers prior to the distribution of the next annual report.

A formal error exists, for instance, if not all members receive an invitation to the general meeting or if an invitation indicates an incorrect date or place. Formal errors can be a reason for the legal challenge of a resolution.

Members shall be invited to the general meeting in due time, usually in writing. The articles of association may also provide for the invitations to be sent out by e-mail. As a rule, the articles of association set a deadline for sending out the invitation (announcement or convocation period). Where no deadline is stipulated in the articles of association, the invitation must nevertheless be sent out in due time to allow members to attend the meeting. The law speaks of proper announcement (usually two to three weeks are enough). Together with the invitation, the agenda shall be communicated. The announcement allows members to prepare for the meeting and to decide whether to attend the meeting or not. In many cases, the articles of association specify a deadline for the submission of agenda items.

The general meeting must be announced in due time to allow members to attend and prepare for the meeting. The items to be discussed (agenda items) are to be clearly defined to allow members to form an idea about the scope of the topic and decide whether they want to take part in the meeting or not. If a member is excluded from the association, the name of the member concerned must be stated; however, in the case of elections it is not necessary to list the names of the candidates in advance. New candidates may be proposed even during the meeting.

Question

What needs to be taken into account if an association wishes to amend its articles of association?

Answer

An association wants to give itself a new purpose or a new name or now also wishes to gain benefactor members. Changes of this kind require an amendment to the association's articles of association.

Responsibility for any revision to the articles of association lies with the general meeting, with any change possibly requiring a qualified majority of votes. In the case of important amendments to an association's articles of association that are likely to be subject to controversial debate, it is advisable to convene an extraordinary general meeting to address this single topic. The committee provides the members with the proposed amendments together with the invitation within the period stated in the articles of association. In the case of a total revision or in instances in which major changes are to be made, it is advisable to present the amendments synoptically (the currently applicable text is presented opposite the new text).

At the (extraordinary) general meeting, the provisions to be revised are put forward for discussion individually. At the end, an overall vote is held. Changes to the association's name and its purpose must also be communicated to absent members following the (extraordinary) general meeting in the minutes. If a member is not in agreement with the change of purpose, they may declare their withdrawal from the association in accordance with Article 74 of the Swiss Civil Code (ZGB). If the association is entered in the commercial register, changes to its name and purpose must be reported. It is advisable to also inform the association's most important financial backers prior to the distribution of the next annual report.

The articles of association may designate a certain minimum number of members present for the quorum of the general meeting.

Some articles of association stipulate that a certain minimum of members must be present for the general meeting to pass valid resolutions. The committee can also define a minimum number of members present and thus its quorum. If there are not enough members present, in many cases the only option is to break off and postpone the meeting.

The term quorum refers to the minimum number of members present at a meeting or a certain type of majority that is necessary to make the voting at that meeting valid. For especially important decisions, the articles of association may require a qualified majority, e.g. two thirds of members present or one third of all members.

In order to determine the quorum and the majority in the general meeting vote counters are selected at the beginning of the meeting.

Question

In our articles of association, no fixed number of committee members is defined and no required majority is specified for elections. In such cases, does a contentious figure who is standing for election need to be elected with an absolute majority of votes?

Answer

The question of required votes arises on a general basis and not just in connection with contentious figures. If the articles of association do not explicitly govern the required share of votes (qualified majority), Article 67(II) of the Swiss Civil Code (ZGB) applies: "Resolutions require a majority of the votes of the members present". An absolute majority is therefore required. This is calculated on the basis of the number of members in attendance. All votes need to be counted, including invalid votes and abstentions. Example: if 100 members are in attendance, an absolute majority is achieved with 51 votes. Should an uneven number of members be in attendance, the figure required for an absolute majority is determined by dividing the number of members in attendance by two and rounding this figure up to the next whole number.

In many cases, the articles of association of associations state that decisions can be made with a relative or simple majority of votes: irrespective of the number of members in attendance, a motion is approved if it receives more votes in favour than against.

Resolutions that violate the law or the articles of association may be challenged by members within one month after having received knowledge about them. Apart from the law of association, the word “law” refers to other provisions of the legal system, too. The term “articles of association” also includes other internal regulations of the association. Members may appeal to a court of law if the internal instances were called without success. Resolutions of the committee or other bodies, too, may be challenged if they violate the articles of association or the law. Only those members who have not approved the resolutions themselves are entitled to take legal action. The complaint is to be directed against the association. If successful, the contested resolution is repealed retroactively.

The decision of the general meeting is a decision that is binding for the association. The general meeting decides on the acceptance or rejection of motions.

In a meeting, there may be several motions at different levels on the same topic. The chair of the meeting must arrange the votes on individual motions in the right order. In the vote, one motion is compared to another, and the one which gets the most votes is then compared to the next. Principally, motions that deal with details should be voted on first, main motions are voted on last. The decisions on motions that deal with details are contingency decisions because they depend on the acceptance or rejection of the main motion.

For the settlement of disagreements between members and the association as well as for the contestation of resolutions, independent courts of arbitration as provided for in the statutes may be appealed to. If no agreement is reached or if the arbitral award is not accepted, ordinary courts may be called, depending on the contentious issue.

Question

It is not specified in our articles of association as to when the minutes of the general meeting have to be sent out. Is it sufficient to enclose these with the next invitation to the general meeting or should they be sent out as soon as possible after the meeting in question?

Answer

There are no legal regulations on the distribution of minutes. If the articles of association do not specify anything in this regard and there are no long-standing, appropriate customs in place, the committee can distribute the minutes as it sees fit.

The benefit of a prompt distribution is that the members - and especially also the absent members - are informed of the relevant resolutions in a timely manner. If the minutes have to be approved by the general meeting, they are referred to as "draft minutes". The timely distribution of the draft minutes following approval by the committee allows for members to be called on to raise any objections they may have. Where necessary, the committee can then present an amended version to be voted on at the next meeting. Under Article 75 of the Swiss Civil Code (ZGB), a member can challenge resolutions that breach the law or the association's articles of association before a competent court within one month of receiving the minutes. This is another reason why early distribution makes sense.  Otherwise, a complaint could still be filed after a year.

If the invitation is sent out via e-mail, the minutes can be attached as an additional document. If the association has an internal area on its website, the document can be stored here and the members informed accordingly.

Conclusion:

• The minutes serve to provide information to members, a fact that speaks in favour of their prompt distribution.
• To ensure that the members can approve the minutes at the general meeting, they need to be familiar with their wording, which represents an argument for distributing the minutes (again) together with the invitation.
• To save paper, it is advisable to make use of electronic options. When doing so, however, consideration has to be given to members who are not electronically networked.
• As a rule, the minutes are signed by both the minute-taker and the chairperson.
• The committee can also govern the distribution of minutes by presenting a corresponding motion to the general meeting. This means that member wishes can be accommodated. This does not require a corresponding provision in the articles of association. Instead, a meeting resolution recorded in the minutes suffices.

Question

Is it permissible to ask members to respond with their first name, surname, and signature when participating in a written vote?

Answer

You must ensure that only people entitled to vote take part in the vote and/or elections. It is therefore correct that voting persons need to be able to be identified. An independent person can then count these ballots during the counting process and the results can be determined without allocating them to the people voting. If you want to ensure complete anonymity during votes, for example, you would have to create separate voting cards that have to be sent back with the vote or ballot (as is the case for political elections). I would only recommend this procedure if an election is strongly contested. 

A formal error exists, for instance, if not all members receive an invitation to the general meeting or if an invitation indicates an incorrect date or place. Formal errors can be a reason for the legal challenge of a resolution.

If a decision has been taken, a motion may be submitted to reconsider that decision. This may be useful, for example, if the decision is unlawful, if new aspects have become known, or if, at a later stage, another decision has been taken that is incompatible with the first one. If a motion to reconsider is approved, the matter is voted on again. The result may be different or the same as the first vote.

If legal proceedings are instituted against an association, the domicile of the association shall be the place of jurisdiction (place of the competent court).

Both the general meeting and the committee can pass resolutions by deciding on a subject matter. A record shall be prepared of the resolutions that have been passed.

Question

At our last general meeting, only four out of our 120 members were in attendance in addition to our five-person committee. Are the important resolutions that were passed during the meeting still valid?

Answer

Yes, the resolutions are valid. The meeting would only be deemed not to have a quorum if the association's articles of association specify a requirement for a minimum number of members with voting rights to be in attendance (attendance quorum).

Even if important decisions have only been taken by just a few people, all members and the committee must abide by the resolutions in question. The stance that "the absent are always wrong" applies in such cases. Under Article 75 of the Swiss Civil Code (ZGB), all members who were not in agreement (including absent members) have the right to challenge resolutions that breach the law or the association's articles of association before a competent court within one month of being made aware of the decision in question.

If a decision of the committee or the general meeting violates the articles of association, this decision may be challenged within one month. Those who have approved the respective decision, cannot challenge it.

Resolutions are void if they drastically contradict the legal or statutory provisions. If, for instance, a new committee is elected although the end of the designated term of office has not been reached, without the previous committee having resigned or being voted out, the election resolution is void. Void resolutions have no legal effect, in contrast to resolutions that can be challenged. Disputable resolutions remain effective until they have been (successfully) challenged. For the contestation of decisions, a deadline must be respected. Nullity, on the other hand, can be asserted at any time and by anyone affected by the resolution. Please note: It is not always easy to distinguish nullity and contestability.

Question

In our articles of association, no fixed number of committee members is defined and no required majority is specified for elections. In such cases, does a contentious figure who is standing for election need to be elected with an absolute majority of votes?

Answer

The question of required votes arises on a general basis and not just in connection with contentious figures. If the articles of association do not explicitly govern the required share of votes (qualified majority), Article 67(II) of the Swiss Civil Code (ZGB) applies: "Resolutions require a majority of the votes of the members present". An absolute majority is therefore required. This is calculated on the basis of the number of members in attendance. All votes need to be counted, including invalid votes and abstentions. Example: if 100 members are in attendance, an absolute majority is achieved with 51 votes. Should an uneven number of members be in attendance, the figure required for an absolute majority is determined by dividing the number of members in attendance by two and rounding this figure up to the next whole number.

In many cases, the articles of association of associations state that decisions can be made with a relative or simple majority of votes: irrespective of the number of members in attendance, a motion is approved if it receives more votes in favour than against.

Question

When do resolutions of the general meeting come into force?

Answer

Resolutions passed at a general meeting shall not enter into force until after the end of the meeting, or at a later date, if so decided. Until the end of the meeting, a motion to reconsider (procedural motion) may be submitted to vote again on the matter of a resolution if there are important reasons for doing so. It is therefore not permissible, for example, for an amendment to the articles of association to enter into force immediately after its resolution at the meeting itself.

Question

We would like to add the option of a written vote instead of a general meeting to the articles of association. What needs to be considered here?

Answer

Article 66(2) of the Swiss Civil Code (ZGB) provides the following legal provision: "The written consent of all members to a proposal is equivalent to a resolution of the general meeting". This means, however, that all of the members have to take part in and consent to the written vote.
The possibility of passing resolutions in writing can also be governed in the articles of association. For example, this could be formulated as follows: "Resolutions may be passed by circular (by letter, e-mail or electronic voting platform) (in justified exceptional cases).
However, written resolutions entail significant disadvantages: unlike at a physical meeting, discussions cannot take place once resolutions are passed in writing. Motions on existing agenda items (amendments and countermotions) or additional election proposals have to be submitted in advance. We therefore advise against the general replacement of physical meetings with the written passing of resolutions.
If an association nevertheless opts to pass a resolution in writing, it is important that the provisions laid down in the articles of association are adhered to: invitation period, attendance quorum (participation quorum), required majorities. The association must ensure that members vote themselves and only once, for example by signing the voting slip. The resolutions of the written vote should be recorded in a brief minutes document, including details of how many votes were received and how the vote was taken. It is also important to ensure that data protection is guaranteed.

The law of association allows large associations to hold delegate meetings. They replace the general meeting. In large associations, the personal rights of participation can only be exercised with difficulty; therefore, delegates instead of the individual members take on the task to protect the principles of democracy. The delegates shall be elected by the members of sections or local associations.

In addition to the annual ordinary or statutory general meeting, the committee may convene an extraordinary general meeting for important or unforeseen issues. The committee has to convene an extraordinary general meeting if one-fifth of the members requests the convocation of such a meeting.

The term “general meeting” is often used instead of “members meeting” or “association meeting”. In Association Law, the term does not exist. Here, the general meeting is called association meeting or members meeting.

Question

Our members live all over Switzerland and in neighbouring foreign countries, for many of them it is not possible to attend the general meeting. Is it admissible to have a general meeting online?

Answer

Members have the right to attend the general meeting and to participate in voting and elections as well as the corresponding discussions. If a Swiss association has members with residence in a foreign country, it must ensure that these members can make use of their rights. As a supplement or substitute for a physical meeting, an online meeting can be held via an online conference room (e.g. Skype, Facetime, etc.) or via a live stream from the meeting with a chat option for discussion and voting. This is admissible provided all members are invited in time, have access to the Internet and receive the necessary documents and access data. A further prerequisite is that the articles of association provide for online meetings.

The members meeting is the supreme and most important governing body of an association. It usually takes place once a year (ordinary or statutory meeting). The members meeting is the legislature of the association. It issues and amends the articles of association, elects the committee and appoints other statutory bodies (such as auditors) and sets up working groups and commissions. It supervises the committee by reviewing and approving (or rejecting) the annual report (management report) including the annual accounts. With the approval, the meeting grants discharge to the committee. Depending on the articles of association, it may be responsible for other matters that have not been transferred to another body. The members meeting can also resolve the dissolution of the association. Members must be invited in due time to the meeting and are entitled to submit motions. They are allowed to speak on agenda items, take part in discussions or make counter motions. Members may themselves request the convening of a general meeting. Under the law, it is sufficient if one fifth of the members request an extraordinary general meeting.

Pursuant to the Swiss Federal Council’s Ordinance 3 on Measures to Combat the Coronavirus, associations were permitted to hold General Meetings online or pass resolutions in writing until 31.12.2022, even if this is not provided for in the Articles of Association. Pursuant to the Ordinance, it was not permitted to combine the two different methods of implementation. These exemptions granted by the Federal Council ceased to apply on 01.01.2023; General Meetings must now again be held in accordance with Articles of Association. This means that General Meetings are allowed to be held online or in hybrid format if permitted explicitly by the Articles of Association.

All members of an association take part in the universal assembly. This is a rare event, but it can actually occur in associations with few members. In this case, it is permissible to pass resolutions, even if this has not been announced in advance.

Pursuant to the Swiss Federal Council’s Ordinance 3 on Measures to Combat the Coronavirus, associations were permitted to hold General Meetings online or pass resolutions in writing until 31.12.2022, even if this is not provided for in the Articles of Association. Pursuant to the Ordinance, it was not permitted to combine the two different methods of implementation. These exemptions granted by the Federal Council ceased to apply on 01.01.2023; General Meetings must now again be held in accordance with Articles of Association. This means that resolutions may be passed in writing if permitted explicitly by the Articles of Association. If there is no corresponding provision in the Articles of Association, the following applies: “The written consent of all members to a proposal is equivalent to a resolution passed by the association’s General Meeting.” This means that all members must take part in and consent to the written vote.

Question

We would like to add the option of a written vote instead of a general meeting to the articles of association. What needs to be considered here?

Answer

Article 66(2) of the Swiss Civil Code (ZGB) provides the following legal provision: "The written consent of all members to a proposal is equivalent to a resolution of the general meeting". This means, however, that all of the members have to take part in and consent to the written vote.
The possibility of passing resolutions in writing can also be governed in the articles of association. For example, this could be formulated as follows: "Resolutions may be passed by circular (by letter, e-mail or electronic voting platform) (in justified exceptional cases).
However, written resolutions entail significant disadvantages: unlike at a physical meeting, discussions cannot take place once resolutions are passed in writing. Motions on existing agenda items (amendments and countermotions) or additional election proposals have to be submitted in advance. We therefore advise against the general replacement of physical meetings with the written passing of resolutions.
If an association nevertheless opts to pass a resolution in writing, it is important that the provisions laid down in the articles of association are adhered to: invitation period, attendance quorum (participation quorum), required majorities. The association must ensure that members vote themselves and only once, for example by signing the voting slip. The resolutions of the written vote should be recorded in a brief minutes document, including details of how many votes were received and how the vote was taken. It is also important to ensure that data protection is guaranteed.