jurisdiction

Sources of law 

Article 322ter – Article 322decies Swiss Criminal Code (SCC) 

Article 4a Federal Act against Unfair Competition (UCA)  

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 Ordinance on Integrity and Transparency in the field of Medicinal Products and Medical Devices (TPITO)  

Articles 76b – 76j Federal Act on Political Rights (PRA)

Offence 

Public  Sector 

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

Any act by which a public official ,   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 SCC) 

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 SCC) 

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 SCC) 

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 duties.

Transparency in Political Funding (Article 76j PRA)

Failure by political parties or independent deputies of the Federal Parliament to disclose monetary or non-monetary donations exceeding the value of CHF 15,000 per donor and year (Article 76b PRA), failure by individuals, legal entities and partnerships running a campaign related to an election to the Federal Parliament or a federal vote to disclose funding if they spend more than CHF 50,000 (Article 76c PRA), or failure by political actors according to Articles 76b and 76c PRA to ascertain the source of, or return, an anonymous or foreign donation (Article 76h PRA).

Private Sector

Active Bribery in the Private Sector (Article 322octies SCC)
Any act by which a person in the private sector  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 SCC) 
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.

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
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 hereinabove)
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
Partnership (including limited liability partnership) incorporated in the jurisdiction? Yes
Director of Swiss company? Yes
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? Yes
Foreign company / partnership if bribe is committed abroad? No
Penalties  
Penalties include: 

Public Sector 

Individuals 

  • Imprisonment for up to 5 years in cases of bribery (up to 3 years in cases of granting / acceptance of advantages) 
  • Monetary penalty of up to CHF 540,000 000 in cases of bribery or granting / acceptance of advantages
  • Fine of up to CHF 40,000 in cases of failure to comply with the duties of transparency in political funding
  • 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 5,000,000 in cases of bribery or granting of advantages
  • Confiscation 

Private Sector  

Individuals

  • Imprisonment for up to 3 years
  • 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 5,000,000
  • Confiscation
Defences  
Are there any defences available? 
  • According to Article 322decies para. 1 SCC, 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 TPITO.