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Switzerland

Anti-Bribery and Corruption Laws in Switzerland

Switzerland
Sources of law 

Article 322ter – Article 322decies Swiss Criminal Code (StGB) Article 4a Federal Act against Unfair Competition (UWG) 1 Article 4a UWG qualifies (active and passive) bribery as unfair conduct, exposing offenders to civil liability. The legal definition of bribery in Article 4a UWG coincides with the one in Articles 322octies and 322novies StGB on active and passive bribery in the private sector.  

Articles 55 and 56 in conjunction with Articles 86 para. 1 lit. h respectively 87 para. 1   lit. h Federal Act on Medicinal Products and Medical Devices (HMG) as well as Article 10 Ordonnance on Integrity and Transparency in the field of Medicinal Products and 

Medical Devices (VITH) 2 Article 56 in conjunction with Article 86 para. 1 lit. h HMG and Article 10 VITH impose a duty of transparency on both the selling and the purchasing persons and organisations of medicinal products. According to this provision, all discounts and rebates granted on purchases of such products shall be shown on the receipts and invoices and shall be disclosed to the competent authorities on request. Violations of Article 56 qualify as minor offences (so-called contraventions) (see footnote 13).  

Offence 

Public  Sector 

Active Bribery of Swiss and Foreign Public Officials (Articles 322ter and 322septies para. 1 StGB) 

Any act by which a public official 3 A Swiss or foreign public official is a member of a judicial or other authority, a public employee, an officially-appointed expert, translator or interpreter, an arbitrator or a member of the armed forces. , 4 Private individuals who fulfil official duties are subject to the same provisions as public officials (Article 322decies para. 2 StGB).  or a third party is offered, promised or given an undue advantage in order to cause the public official to commit or omit an act in connection with   his official activity which is contrary to his duty or dependent on his discretion. 

Passive Bribery of Swiss and Foreign Public Officials (Articles 322quater and 322septies para. 2 StGB) 

Any act by which a public official demands or secures the promise of, or accepts an undue advantage for himself or for a third party in order that he commits or omits an act in   connection with his official activity which is contrary to his duty or dependent on his discretion. 

Granting an Advantage (Article 322quinquies StGB) 

Any act by which a Swiss public official is offered, promised or given an undue advantage for himself or for a third party in order that he carries out his official duties. 

Accepting an Advantage (Article 322sexies StGB) 

Any act by which a Swiss public official demands or secures the promise of, or accepts an undue advantage for himself or for a third party in order that he carries out his official

The bribe  
Is there a presumption that any advantage was given/received corruptly?No
Would facilitation payments be caught? Yes (only to Swiss public officials and persons who prescribe or dispense medicinal products)
Would corporate hospitality be caught? Yes
Is there any de minimis? Yes  8 Article 322decies para. 1 lit. b StGB provides that insignificant benefits that are in accordance with common social practice shall not be considered undue advantages. Moreover, Article 322octies para. 2 StGB and Article 322novies para. 2 StGB (on active and passive bribery in the private sector) make the prosecution of minor cases subject to the filing of a criminal complaint by the injured party (see footnote 5). Article 55 para. 2 HMG in conjunction with Art. 3 to 9 VITH declare permissible certain benefits and acts that are not regarded as undue advantages. Article 87 para. 6 HMG leaves it to the discretion of the authorities to prosecute and punish insignificant cases in the health sector
Does the bribe have to be monetary? No
Public officials  
Does the offence only apply to bribing public officials? No (see the description of the offence above)
Acts  performed  outside Switzerland  
Can bribery performed outside Switzerland be caught? Yes
Does the act also need to be illegal in the foreign country of performance? Yes
Who can be liable  
Swiss national? Yes
Swiss company? Yes  9 Where the company has not undertaken all reasonable organisational measures required to prevent the active bribery (article 102 para. 2 StGB).
Swiss partnership (including limited liability partnership)? Yes  10 Where the partnership has not undertaken all reasonable organisational measures required to prevent the active bribery (article 102 para. 2 StGB).
Director of Swiss company? Yes  11 A director may be held criminally liable if he was personally involved in the unlawful act, either actively or passively (i.e. by allowing the conduct to happen in violation of his duty to protect the entity’s integrity).
Swiss company if the bribe is committed abroad by its foreign subsidiary?No
Foreign subsidiary of a Swiss company if the bribe is committed abroad? No
Foreign national / company / partnership if bribe is committed in Switzerland? Yes
Foreign national domiciled or “ordinarily resident” in Switzerland if bribe is committed outside Switzerland?  12 A foreign national domiciled or “ordinarily resident” in the jurisdiction may be held criminally liable if the bribe is committed outside the jurisdiction provided that: :info: the offence is also liable to prosecution at the place of commission or the place of commission is not subject to criminal law jurisdiction; (ii) the person concerned is in Switzerland or is extradited to Switzerland due to the offence; and (iii) under Swiss law extradition is permitted for the offence, but the person concerned is not being extradited (Art. 7 para. 1 StGB).
Foreign company / partnership if bribe is committed abroad? Yes
Penalties  
Penalties include: 

Public  Sector 

Individuals 

  • Imprisonment for up to five years (up to three years in cases of granting / acceptance of advantages) 
  • Monetary penalty of up to CHF 540,000 
  • Confiscation 
  • Potential disqualification from acting as a director or executive officer (in certain regulated sectors such as the financial sector) 

Companies 

  • Fine up to CHF 5m 
  • Confiscation 
Defences  
Are there any defences available? 
  • According to Article 322decies para. 1 StGB, advantages are not deemed undue if they are either (i) permitted under public employment law (public sector); (ii) contractually approved by the employer/principal (private sector); or (iii) of minor value in accordance with social custom. 
  • Article 55 para. 2 HMG exempts (i) “advantages of modest value (up to CHF 300) which are of relevance to medical or pharmaceutical practice”, (ii) “support for research, education and training, provided that certain criteria are met”, (iii) “compensation for equivalent services in return, in particular for those provided in connection with orders and deliveries of therapeutic products”, as well as (iv) “price discounts or refunds granted on medical purchases, provided they have no influence on the choice of treatment”. The details are outlined in the VITH. 

 

Article 8

Sources of law 

Article 322ter – Article 322decies Swiss Criminal Code (StGB) Article 4a Federal Act against Unfair Competition (UWG)  1  Article 4a UWG qualifies (active and passive) bribery as unfair conduct, exposing offenders to civil liability. The legal definition of bribery in Article 4a UWG coincides with the one in Articles 322octies and 322novies StGB on active and passive bribery in the private sector.

Articles 55 and 56 in conjunction with Articles 86 para. 1 lit. h respectively 87 para. 1   lit. h Federal Act on Medicinal Products and Medical Devices (HMG) as well as Article 10 Ordonnance on Integrity and Transparency in the field of Medicinal Products and Medical Devices (VITH) 2 Article 56 in conjunction with Article 86 para. 1 lit. h HMG and Article 10 VITH impose a duty of transparency on both the selling and the purchasing persons and organisations of medicinal products. According to this provision, all discounts and rebates granted on purchases of such products shall be shown on the receipts and invoices and shall be disclosed to the competent authorities on request. Violations of Article 56 qualify as minor offences (so-called contraventions) (see footnote 13).  

Offence 

Private  Sector 

Active Bribery in the Private Sector (Article 322octies StGB)5 

Any act by which a person in the private sector  6 A person in the private sector is an employee, a company member, an agent or any other auxiliary to a third party. The meaning of the term “auxiliary” is wide and cannot be generally defined. It includes employees and business partners but also any other person who – due to a contractual relationship – is subordinate to the third party (e.g. an agent, a consultant, a lawyer). In practice, the term “auxiliary” is thus mostly congruent with the term “business partner” or “employee”. is offered, promised or given an undue advantage for himself or for a third party in order to cause that person to commit or omit an act in connection with his professional or business activities that is contrary to his duties or dependent on his discretion. 

Passive Bribery in the Private Sector (Article 322novies StGB) 

Any act by which a person in the private sector demands, secures the promise of, or accepts an undue advantage for himself or for a third party in order to cause that person to commit or  omit an act in connection with his professional or business activities that is contrary to his  duties or dependent on his discretion. 

Promise of Undue Advantages (Article 55 para. 1 HMG and Article 86 para. 1 lit. h HMG)

Any act by which a person offers, promises or grants an undue advantage  to  persons  who prescribe, dispense, use or purchase for this purpose prescription medicinal products for their  benefit or the benefit of a third party. 7 Generally, the mere granting or accepting of an undue advantage in the private sector (as opposed to active and passive bribery) is not punishable. Article 55 HMG in conjunction with Article 86 HMG stipulate an exception to this rule with a view to natural persons and entities active in the health sector.  

Accepting Undue Advantages (Article 55 para. 1 HMG and Article 86 para. 1 lit. h HMG)

Any act by which persons who prescribe, use or purchase for this purpose prescription medical products claim, are promised or accept any undue advantage for themselves or for the benefit of a third party.

The bribe  
Is there a presumption that any advantage was given/received corruptly?No
Would facilitation payments be caught? Yes (only to Swiss public officials and persons who prescribe or dispense medicinal products)
Would corporate hospitality be caught? Yes
Is there any de minimis? Yes  8 Article 322decies para. 1 lit. b StGB provides that insignificant benefits that are in accordance with common social practice shall not be considered undue advantages. Moreover, Article 322octies para. 2 StGB and Article 322novies para. 2 StGB (on active and passive bribery in the private sector) make the prosecution of minor cases subject to the filing of a criminal complaint by the injured party (see footnote 5). Article 55 para. 2 HMG in conjunction with Art. 3 to 9 VITH declare permissible certain benefits and acts that are not regarded as undue advantages. Article 87 para. 6 HMG leaves it to the discretion of the authorities to prosecute and punish insignificant cases in the health sector.
Does the bribe have to be monetary? No
Public officials  
Does the offence only apply to bribing public officials? No (see the description of the offence above)
Acts  performed  outside Switzerland  
Can bribery performed outside Switzerland be caught? Yes
Does the act also need to be illegal in the foreign country of performance? Yes
Who can be liable  
Swiss national? Yes
Swiss company? Yes  9 Where the company has not undertaken all reasonable organisational measures required to prevent the active bribery (article 102 para. 2 StGB).
Swiss partnership (including limited liability partnership)? Yes  10 Where the partnership has not undertaken all reasonable organisational measures required to prevent the active bribery (article 102 para. 2 StGB).
Director of Swiss company? Yes  11 A director may be held criminally liable if he was personally involved in the unlawful act, either actively or passively (i.e. by allowing the conduct to happen in violation of his duty to protect the entity’s integrity).
Swiss company if the bribe is committed abroad by its foreign subsidiary?No
Foreign subsidiary of a Swiss company if the bribe is committed abroad? No
Foreign national / company / partnership if bribe is committed in Switzerland? Yes
Foreign national domiciled or “ordinarily resident” in Switzerland if bribe is committed outside Switzerland?  12 A foreign national domiciled or “ordinarily resident” in the jurisdiction may be held criminally liable if the bribe is committed outside the jurisdiction provided that: :info: the offence is also liable to prosecution at the place of commission or the place of commission is not subject to criminal law jurisdiction; (ii) the person concerned is in Switzerland or is extradited to Switzerland due to the offence; and (iii) under Swiss law extradition is permitted for the offence, but the person concerned is not being extradited (Art. 7 para. 1 StGB).
Foreign company / partnership if bribe is committed abroad? Yes
Penalties  
Penalties include: 

Private  Sector  13 Violations of Article 56 HMG qualify as minor offences (so called contraventions). Offenders may be liable to a fine of up to CHF 50,000.  

Individuals 

  • Imprisonment for up to three years 
  • Monetary penalty up to CHF  540,000 
  • Confiscation 
  • Potential disqualification from acting as a director or executive officer (in certain regulated sectors such as the financial sector) 

Companies 

  • Fine up to CHF 5m 
  • Confiscation 
Defences  
Are there any defences available? 
  • According to Article 322decies para. 1 StGB, advantages are not deemed undue if they are either (i) permitted under public employment law (public sector); (ii) contractually approved by the employer/principal (private sector); or (iii) of minor value in accordance with social custom. 
  • Article 55 para. 2 HMG exempts (i) “advantages of modest value (up to CHF 300) which are of relevance to medical or pharmaceutical practice”, (ii) “support for research, education and training, provided that certain criteria are met”, (iii) “compensation for equivalent services in return, in particular for those provided in connection with orders and deliveries of therapeutic products”, as well as (iv) “price discounts or refunds granted on medical purchases, provided they have no influence on the choice of treatment”. The details are outlined in the VITH.