<h3>Switzerland and Certain EU/EFTA States Have Concluded a Framework Agreement to Facilitate Telework in a Cross-Border Context</h3>
<h3>1. Introduction</h3>
<p>The global COVID-19 pandemic has given a boost to working from home. While the pandemic has – at least for the time being – come to an end, working from home has stayed and become an integral part of modern working life. When employees no longer work 100% on-site in the Swiss premises of the employer, questions arise in cross-border situations, <em>inter alia, </em>regarding social security law (see also our <a href="https://www.homburger.ch/en/insights/new-cross-border-regulations-with-france-for-working-from-home">Bulletin</a> of January 30, 2023 regarding cross-border regulations with France for telework, which also covers tax law and labor law aspects).</p>
<p>On July 1, 2023, a new framework agreement concluded by Switzerland and certain EU/EFTA states entered into force. The framework agreement governs aspects of social security law and facilitates telework activity in a cross-border context. Employees who usually work in the country of their employer may work up to 49.9% of their total working time from home in their foreign country of residence while remaining subject to the social security system of the employer&#8217;s country. The application of this rule requires that both states involved are signatories to the framework agreement and that the employee is subject to the Regulations (EC) Nos. 833/2004 and 987/2009.</p>
<h3>2. Applicable Legislation for Employment Activities From Home</h3>
<p>Generally, if employees who fall under the Agreement on the Free Movement of Persons (ALCP) or the EFTA Convention work across borders, they are subject to the provisions laid down in Regulations (EC) Nos. 833/2004 and 987/2009 on the coordination of social security systems. These regulations contain rules for conflicts of law stipulating which legal system applies to cross-border employment constellations. Those rules are designed to prevent, to the extent possible, unnecessary switches between member states&#8217; different social security systems.</p>
<p>The general rule is that the location where the work activity is carried out is the place of employment for the purpose of social security law. In the case of telework, this is the location of a person&#8217;s laptop, i.e., his or her state of residence. If an employee regularly works from home in one EU/EFTA state, and on-site at the employer in another EU/EFTA state for the remainder of the working time, article 13(1) of Regulation (EC) No. 833/2004 and article 14(8) of Regulation (EC) No. 987/2009 apply:</p>
<ul>
<li>if the share of telework is below 25%, the activity as a whole is subject to the social security legislation of the employer&#8217;s country. For example, an employee of a Swiss employer, who regularly works from home in another EU/EFTA state one day per week, is subject to Swiss social security system.</li>
<li>on the other hand, if the share of telework is at least 25%, the employee shall comprehensively be subject to the social security legislation of his or her state of residence.</li>
</ul>
<h3>3. Flexibilization During the Pandemic</h3>
<p>Against the background of the COVID-19 pandemic and the increased telework activity, EU and EFTA states agreed on a temporary flexibilization of the rules on the coordination of social security outlined above. In a nutshell, even if the employee employed by a Swiss company was working remotely full-time in an EU or EFTA state, he or she remained subject to the Swiss social security system. This flexible application of the rules has been extended several times and expired recently on June 30, 2023.</p>
<h3>4. New Framework Agreement</h3>
<h4>4.1 General Information</h4>
<p>According to article 16 of Regulation (EC) No. 833/2004, the member states can agree exceptions to the above-mentioned rules on the coordination of social security. Such an exception is – in principle – at the discretion of the competent member state and can only be granted in agreement with the other state involved. However, considering the increased telework activity since the pandemic, as well as the expiry of the flexible application of the rules on the coordination of social security, Switzerland and several EU/EFTA states have concluded a new framework agreement. According to this framework agreement, applications for exceptions for telework up to a maximum of 49.9% of the time will systematically be approved. The framework agreement has entered into force on July 1, 2023.</p>
<p>Currently, the framework agreement has been signed by Switzerland, Austria, Belgium, Croatia, Czech Republic, Finland, Germany, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden and – as announced on June 30, 2023 – also by France (see also our <a href="https://www.homburger.ch/en/insights/new-cross-border-regulations-with-france-for-working-from-home">Bulletin</a> of January 30, 2023 regarding cross-border regulations with France for telework). While other states (such as Estonia, Hungary, Ireland, Lithuania) declared their intention to sign, the United Kingdom indicated that it will not sign the framework agreement. The updated list of signatory countries, the text of the framework agreement and explanations are available <a href="https://socialsecurity.belgium.be/en/internationally-active/cross-border-telework-eu-eea-and-switzerland">here</a>.</p>
<h4>4.2 Applicability of the Framework Agreement</h4>
<p>To the extent that the Regulations (EC) Nos. 833/2004 and 987/2009 are applicable, the framework agreement is subject to the following conditions.</p>
<ul>
<li>First, the framework agreement only applies to salaried employees. Self-employed people may not benefit from the framework agreement.</li>
<li>Second, the framework agreement only applies if both states in question are signatories to the framework agreement.</li>
<li>Third, the framework agreement only covers employees who work no more than 49.9% from his/her home office in the foreign country of residence (in addition to his/her habitual work in the employer&#8217;s country). This 49.9%-limit is calculated over a period of 12 months. Consequently, it is possible to exceed the limit during certain weeks, provided that the limit is observed over the last 12 months. It is worth mentioning that if the cross-border telework amounts to less than 25% of the working time, the situation is governed by Regulations (EC) Nos. 833/2004 and 987/2009 – and not by the framework agreement.</li>
<li>Fourth, only so-called «cross-border telework» is covered by the framework agreement. Cross-border telework is defined in the framework agreement as an activity which:
<ul>
<li>is carried out in a foreign member state;</li>
<li>can be pursued from any location and could be performed at the employer&#8217;s premises; and</li>
<li>is based on information technology to remain connected to the employer&#8217;s working environment as well as stakeholders/clients in order to fulfil the employee&#8217;s tasks (<em>IT link</em>).</li>
</ul>
</li>
</ul>
<p>Additionally, there are two negative conditions that need to be met for the framework agreement to apply. The employee may not:</p>
<ul>
<li>habitually pursue another activity in addition to cross-border telework in the state of residence; and/or</li>
<li>habitually pursue an activity in a state other than the state of residence and the state of the employer.</li>
</ul>
<h4>4.3 Procedure</h4>
<p>If the employee wants to enjoy the benefits offered by the framework agreement, the employer (with the consent of the employee) needs to submit a request to the competent authority in the employer&#8217;s state (<em>opt-in</em> which means that application is not automatic). Specifically, an application for the issuance of an A1 certificate must be submitted. In Switzerland, this is possible via the via the ALPS platform (<em>Applicable Legislation Portal Switzerland</em>). Usually, the request must be submitted within a maximum period of three months of the desired date of subordination. However, during the first year of the framework agreement (i.e., from July 1, 2023, until June 30, 2024) the maximum period to submit the request is one year after the desired date of subordination.</p>
<p>The period during which the applicable social security legislation will be determined by the framework agreement is limited to a maximum of three years. In case the requirements continue to be met beyond this date, a new request must be submitted.</p>
<h4>4.4 Legal Consequences</h4>
<p>If the requirements for the application of the framework agreement are met (in particular, the cross-border telework in the state of residence is less than 50% of the total working time), the person carrying out the habitual cross-border telework will – upon request – be subject to the legislation of the employer&#8217;s state (i.e., where the employer either has his registered office or place of business).</p>
<p>If the requirements are not met, the application will be treated as an ordinary application for an exceptional authorization under article 16(1) of Regulation (EC) No. 833/2004. Thus, the framework agreement does not affect the possibility of concluding individual agreements based on the individual case.</p>
<h4>4.5 Outlook</h4>
<p>The framework agreement entered into force on July 1, 2023. It concludes after a period of 5 years and shall be automatically extended each time for another 5 years.</p>
<p>If a new state signs the framework agreement at a later stage, the framework agreement shall take effect for said state on the first day of the month following the signature.</p>


RZ_Preview_SB_Framework_Work from Home_01

New Framework Agreement Regarding Telework

<h3>Shareholder Activism</h3>
<p>In recent years, various Swiss corporates were facing activist initiatives by shareholders. While some never surface, those that hit the press included Temenos (2022), Richemont (2021), Aryzta (2020), Meyer Burger (2019), Sunrise (2019), Panalpina (2019), Nestlé (2017), GAM (2017), Credit Suisse (2017), and Clariant (2017). In 2020 and 2021, Swiss shareholder activism declined relative to prior years because of the COVID-19 pandemic, but volatility in stock prices in 2022 encouraged hedge funds and other activists. Campaigns have largely focused on board representation, share buybacks, distributions, and company strategy, but activists have also brought ESG matters to the table. Irrespective of the communicated motives, activists often aim to push a company into play for a takeover or spin-off transaction or to create volatility for arbitrage opportunities.</p>
<h3>What Can Boards Do</h3>
<p>Whether they know it or not, many Swiss companies are being observed by activists who might not yet be (outed as) shareholders and who wait for their moment. Listed companies nowadays have their defense manuals in view of potential takeover approaches. However, as public takeovers are increasingly triggered, one way or another, by an active shareholder, boards should also monitor the profile their company offers to potential activists, address weaknesses and remain conscious of the ways and means of activism. Maintaining an open dialogue with key investors is always helpful, but insufficient to prevent activist campaigns. The continuous communication and determined pursuit of a clear and understandable company strategy also makes attacks less likely and undermines their chances of success. Investors aiming to cash out may still seek ways to realize profits, and companies must be prepared to be proactive if needed.</p>
<h3>A New Toolbox for Activists</h3>
<p>The new Swiss corporation law, which took effect on January 1, 2023, gives activists new tools and lowers the hurdles for using existing instruments. As a result, would-be activists need to make smaller investments to pursue their initiatives through legal means.</p>
<h4>1. Right to Call a Shareholder Meeting</h4>
<p>Previously, a shareholder had to represent 10% of a company&#8217;s share capital to compel the board to convene an extraordinary shareholders&#8217; meeting, but under the new law, for listed companies, the threshold has been reduced to 5% of the share capital or voting rights. Activists at small- to medium-sized companies will therefore find it easier to reach this lower threshold.</p>
<p>However, a board might be able to use the lower threshold to its advantage by suggesting to an activist that it is in the activist&#8217;s control to request a shareholder meeting if the activist truly believes this to be necessary. In other words, why should a board listen to a campaigner who prefers just sending letters. Thus, a board may be able to play the ball back into the shareholder&#8217;s court.</p>
<p>Also, while it is easy to publicly call upon a board to convene a shareholder meeting if this has no direct consequences, things are different if the activist must anticipate that the board has to act on such request.</p>
<h4>2. Agenda and Proxy Access</h4>
<p>Now, shareholders representing 0.5% of the share capital of a listed company—not 10% of the share capital or shares with a nominal value of CHF 1 million as before—have the right to have an item included on the agenda of a shareholder meeting. Shareholders with 0.5% can also compel the board to include their motions on specific agenda items and a short explanation in the invitation to the shareholder meeting. By reducing the shareholding requirements, the new law makes it easier for activist shareholders to, among other things, nominate alternative director candidates or make other proposals.</p>
<h4>3. Information and Inspection Rights</h4>
<p>In addition to shareholders&#8217; existing right to ask questions at shareholder meetings (information right), under the new law shareholders representing at least 5% of the share capital or voting rights have a right to inspect certain company documents. Previously, this right was subject to the authorization of the shareholders or the board.</p>
<p>Shareholders&#8217; information and inspection rights are still subject to confidentiality and other legitimate company interests. Such requests need only be granted to the extent that the requested information is needed for the exercise of shareholder rights. If the board refuses to answer questions or grant an inspection, shareholders may challenge the decision in court. Although this was already possible under the old law, by making these rights and obligations explicit the new law may make it easier for boards to decline requests in non-obvious cases and force shareholders to explain in court why their request should be allowed.</p>
<h4>4. Right to Request a Special Investigation</h4>
<p>Shareholders representing 5% of the share capital or voting rights of a listed company (rather than the previous 10% of the share capital or shares with a nominal value of CHF 2 million) now have the right to demand a special investigation from a court if the shareholder meeting has previously rejected such demand.</p>
<p>The new law also lowers evidentiary hurdles for a special investigation. Previously, a claimant had to show that it was more likely than not that a legal violation or a breach of a company&#8217;s articles of association had caused loss to the company or its shareholders. Under the new law, this standard has been lowered to such violation being suitable (<em>geeignet</em>) to have caused such a loss.</p>
<p>Despite these changes, commencing and conducting a special investigation remains a complex and lengthy process. It is therefore unlikely that the number of special investigations will increase materially under the new law.</p>
<h4>5. Litigation</h4>
<p>Under the new law, shareholders may appoint litigation counsel to initiate, on behalf of the company and by simple majority, directors&#8217; &amp; officers&#8217; liability lawsuits or actions to seek repayment of unjustified benefits against directors, officers, or shareholders, among others. Although this makes it easier for shareholders to appoint litigation counsel and force the company to bring a lawsuit, it is unlikely that shareholders will approve such lawsuits. If at all, it seems more effective to replace the board by the same voting majority and have the new board pursue such claims. However, the (threat of a) request for inclusion of such an action on the agenda of a shareholder meeting may be used to put pressure on the incumbent board and management.</p>
<h3>Transition Period</h3>
<p>Companies&#8217; existing articles of association may not comply with the new rights and requirements set out above, particularly the new thresholds. As per the new law&#8217;s transitional rules, we believe that such conflicting provisions remain in force until January 1, 2025, at the latest, but must be amended by then. If, however, a company&#8217;s articles are silent regarding the matters that the new law affects, then the terms of the new law apply immediately.</p>
<h3>Outlook</h3>
<p>The new law makes it easier for would-be activists to initiate campaigns, but it does not follow that they will be successful. Activist campaigns are often &#8220;low-cost and low-engagement&#8221;. Such campaigns may be limited to some e-mails and a public letter or two in which an activist raises its demands to the board. Rather than giving in to these (soft) demands, a board may refer an activist to its available corporate rights, such as the right to request a shareholder meeting, more often and leave the task, hassle and accountability for such actions to the activist. In any case, it will be more difficult for an activist shareholder to blame the board if the activist refrains from making use of available shareholder rights.</p>
<p>In sum, while the new rules do need to be considered in designing the defensive set-up of companies and may have certain effects, we do not expect them to become game changers for shareholder activism in Switzerland.</p>


RZ_Preview_Shareholder Activism

Shareholder Activism: New Year, New Challenges

Corporate / M&A

Technology and Digital Economy

Financing and Investment Products

Insurance

Wefox-web-640x140

Homburger News

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<p>On May 17, 2023, the Berlin-based insurtech wefox announced that it has secured a EUR 50 m revolving credit facility arranged by J.P. Morgan Securities plc and Barclays Bank PLC, following a USD 55 m second close in its Series D that was completed earlier this year at a USD 4.5 bn valuation with investments from existing and new investors, including Squarepoint Capital.</p>
<p>The new funding is earmarked to further strengthen wefox&#8217;s insurance and distribution business, which includes the recent launch of a global affinity business, and developing the technology platform.</p>
<p>Homburger AG advised wefox Holding AG as transaction counsel in the Series D extension funding round and as Swiss counsel in connection with the UK law-governed EUR 50 m revolving credit facility agreement. The Homburger team comprised Andreas Müller, Stefan Blunschi, Oriana Schöni and Fabio Anceschi (all Corporate / M&amp;A; Technology and Digital Economy), Jürg Frick and Nathalie Scherrer (both Financing and Investment Products), and Stefan Oesterhelt and Laetitia Fracheboud (both Tax).</p>


Homburger advised wefox in connection with a EUR 50 m revolving credit facility agreement and its USD 55 m Series D extension funding round

Capital Markets

Santhera

<p>On February 28, 2023, Santhera Pharmaceuticals Holding AG (SIX: SANN) announced a private placement of shares and an amendment of its existing financing with funds managed by Highbridge Capital Management, LLC, to provide up to CHF 22.2 m in aggregate, subject to certain milestones and conditions. In addition, Santhera issued 40 m shares in an ordinary capital increase, 37 m of which will be held in treasury for the time being.</p>
<p>The Homburger team was led by Daniel Häusermann (Corporate / M&amp;A, Capital Markets) and included Eduard De Zordi (Capital Markets), Stefan Oesterhelt (Tax), Jasmin Künzle and Romain Fakhoury (both Corporate / M&amp;A, Capital Markets), as well as Anna Delia Lohmann and Fabio Anceschi (both Corporate / M&amp;A).</p>


Fabio
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Homburger advised wefox in connection with a EUR 50 m revolving credit facility agreement and its USD 55 m Series D extension funding round

Homburger advised Santhera on its financing through a private placement of shares and upsizing of existing financing

New Framework Agreement Regarding Telework

Shareholder Activism: New Year, New Challenges

Plattformen und (Daten-)Monopole: Braucht es neue Instrumente im Kartellrecht?

BGer 4A_19/2020: Löschung der AG im HR während pendenter Verantwortlichkeitsklage: BGer auf juristischer Irrfahrt

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FabioAnceschi

Homburger advised wefox in connection with a EUR 50 m revolving credit facility agreement and its USD 55 m Series D extension funding round

Homburger advised Santhera on its financing through a private placement of shares and upsizing of existing financing

New Framework Agreement Regarding Telework

Shareholder Activism: New Year, New Challenges

Plattformen und (Daten-)Monopole: Braucht es neue Instrumente im Kartellrecht?

BGer 4A_19/2020: Löschung der AG im HR während pendenter Verantwortlichkeitsklage: BGer auf juristischer Irrfahrt

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