Translation:
The waiver of the limited audit, known in Swiss commercial law as “opting out,” allows smaller corporations to dispense with the obligation to have their annual financial statements subject to a limited audit. As of 1 January 2025, this regime has been reformed. In particular, a retroactive waiver is no longer permitted; the waiver applies exclusively to future financial years and must be filed with the commercial register before the beginning of the relevant financial year. This amendment forms part of a revision of the Swiss Code of Obligations (CO) and the Commercial Register Ordinance (CRO), which aims to strengthen transparency and prevent abuse.
Statutory basis
The statutory basis for waiving the limited audit is Art. 727a CO in conjunction with Art. 62 CRO. Under these provisions, a public limited company (AG), limited liability company (GmbH) or cooperative may waive a limited audit subject to certain conditions. The key requirements are:
- A resolution of the shareholders or members; unanimity is required.
- A maximum of ten full-time employees on average per year; otherwise, the obligation to conduct a limited audit continues to apply.
- The application must be filed before the start of the relevant financial year.
A retroactive exemption—i.e. for a financial year that has already begun or been completed—has no longer been possible since 1 January 2025.
Commercial Register Ordinance and formal requirements
Pursuant to the CRO, the following documents must be submitted with the application:
- the formally signed application to the commercial register in accordance with Art. 17 CRO,
- waiver declarations from all shareholders or the corresponding minutes of the meeting,
- a declaration pursuant to Art. 62 para. 2 CRO stating the date on which the waiver takes effect,
- the approved annual financial statements for the last completed financial year,
- the minutes of the approval of the annual financial statements,
- the audit report for the last financial year,
- where applicable, a public deed including amended articles of association, if these mandatorily provide for an audit firm.
These documents are not publicly accessible, as they fall under Art. 10 lit. d CRO.
Entry of the audit firm in the commercial register
It is now expressly regulated that the existing audit firm initially remains entered in the commercial register and may not be deleted in the same filing. It may only be removed after completion of the last annual financial statements that are still subject to a mandatory audit and approval of those financial statements.
Analysis of the key changes as of 2025
Prior to 2025, it was possible to declare a waiver retroactively, for example for a financial year that had already begun. This option has been abolished in order to increase transparency and prevent abuse. Companies must now file the waiver in due time before the start of the financial year; otherwise, the audit obligation remains in force.
The requirement to submit the annual financial statements for the last completed financial year as well as the audit report increases the formal effort involved. These documents enable the commercial register to verify that the conditions for the waiver are met.
The audit firm remains entered in the commercial register until the final audit of the last mandatory financial statements has been completed, creating a clear transitional regime but at the same time maintaining a mandatory relationship until the last audit mandate has been concluded.
Practical implications and risks
For smaller companies, opting out can represent a significant relief, as both costs and administrative burden are reduced. At the same time, the new legal framework requires precise planning and timely filing. Failure to comply with the deadlines may result in the company remaining subject to the audit obligation, which can entail additional costs and organizational consequences.
If a company fails to file the opting-out application or no longer meets the requirements, an organizational deficiency arises within the meaning of Art. 731b CO and Art. 939 CO. In such cases, the commercial register office may request the competent court to take measures, potentially up to and including the dissolution of the company.
Practical recommendations
Early planning: Resolutions on opting out should be adopted during the current financial year and filed with the commercial register office before the end of the year.
Complete documentation: All required documents—especially the approved annual financial statements and the audit report—must be carefully reviewed and submitted.
Monitoring of requirements: Continuously verify whether the company still meets the thresholds (fewer than ten full-time employees).
Review of the articles of association: If the articles mandatorily provide for an audit firm, an amendment to the articles must be filed in good time.
Documentation: Keep all minutes of meetings and waiver declarations properly and completely documented.
Conclusion and outlook
The revised opting-out framework as of 1 January 2025 provides greater legal certainty and transparency, but at the same time requires careful preparation and timely implementation. For SMEs and start-ups, waiving the limited audit can be an important instrument for reducing administrative and financial burdens; however, strict compliance with deadlines and formal requirements is essential. Further adjustments may follow in the future, for example regarding the extension of existing opting-out entries or expanded notification obligations in the event that threshold values are exceeded.
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