Business correspondence – retention obligation?
Since 1.1.2013, Swiss commercial law has applied the principle that business correspondence is no longer subject to retention. What does this mean for companies? Which cases do you consider borderline and where is there a need for explanation?
According to the OR, the following retention rules apply:
| Obligation to retain “data” according to CH law 2013 | ||||||||||||||||
| Constellation | K1 | K2 | K3 | K4 | K5 | K6 | K7 | K8 | K9 | K10 | K11 | K12 | K13 | K14 | K15 | K16 |
| Data are determined and suitable to prove a legally significant fact (=deed)? | J | J | J | J | N | N | N | N | J | N | J | N | N | J | N | J |
| Did the data trigger a booking? | J | J | J | N | N | N | N | J | J | N | N | J | n | J | J | N |
| Can they serve to prove a posting/fact? | J | J | N | N | N | N | J | J | N | J | J | N | J | N | J | N |
| Can the posting/fact be tracked with this only? | J | N | N | N | N | J | J | J | N | J | N | J | N | J | N | J |
| Do these data need to be archived? | ||||||||||||||||
| YES, must be archived in any form | X | X | X | – | – | X | X | X | – | X | – | X | – | X | – | X |
| YES, must be archived in paper form | – | – | – | – | – | – | – | – | – | – | – | – | – | – | – | – |
| NO, do not have to be archived | – | – | – | – | X | – | – | – | – | – | – | – | – | – | – | – |
| YES, but archiving can be rejected by a risk management decision | – | – | – | X | – | – | – | – | X | – | – | – | – | – | X | – |
| NO, but archiving can be supported by a risk management decision. | – | – | – | – | – | – | – | – | – | – | X | – | X | – | – | – |
| Special case OR 958f para. 2 | ||||||||||||||||
| Annual report or audit report? | J | J | J | J | J | J | J | J | J | J | J | J | J | J | J | J |
| Must be signed and archived in paper form | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X | X |
Instruction: Identify the column that matches the concrete document class or question.
Example: K7 are files/data/documents that have no direct documentary character, have not triggered a booking but are necessary for the proof of a booking. Thus, this data must be archived, although there is no formal requirement. Consequently, archiving is usually done electronically.
This information must be transferred to the taxonomy (structure of the company data).
This is the legal consideration according to OR. This does not cover special legal requirements or risk management considerations. Especially in connection with business correspondence, considerations must be made that ultimately flow into the taxonomy (functional classification) or list of retention objects.
LONG-TERM retention (archiving) of business correspondence is indicated in the following cases:
- High risk exposure based on experience with project/product/customer/authorities, etc.
- Required complete dossier formation on the basis of special legal regulation (e.g. for risk analyses or proof of conformity)
- Communication of exposed persons in positions of responsibility (BoD, GL)
It is imperative to define these criteria for one’s own organization and to implement them according to uniform standards. We expressly advise against simple solutions (e.g. comprehensive e-mail archiving)!
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