SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
official activity that is contrary to their duty or depend - ent on their discretion. Therefore, the following condi - tions are necessary: • the bribed person’s act must be carried out (or fail to be carried out) in connection with their official activity; • the act must be contrary to the bribed person’s duty or dependent on their discretion; and • the undue advantage must be offered, promised or given in order for the bribed person to carry out (or to fail to carry out) the act that is contrary to their duty. A connection with the official activity of the bribed person exists where they are acting in their official capacity or violate official duties through the act in question. A breach of duty is established if the bribed person violates a provision under public law (ie, under labour law and their employment contract describ - ing their dutiful conduct). Alternatively, this condition is also met if the bribed person’s act is dependent on their discretion. The bribed person’s determinable consideration is deemed an undue advantage if there is a sufficient connection between the bribed person’s behaviour and the advantage granted by the bribing person. With regard to all types of bribery, the undue advan - tage does not need to be offered, promised or given to the bribed person – it can also be offered, promised or given to a third party. Additionally, for the offender to be punishable, it is sufficient that the undue advan - tage is offered, promised or given to the bribed person – regardless of whether the results expected by the involved persons actually occur. Under Swiss criminal law, the failure to prevent brib - ery is not an offence. However, a company may also be punished for a bribery offence committed in the company – irrespective of the criminal liability of any natural persons – if the company did not undertake all requisite and reasonable organisational precautions necessary to prevent bribery (Article 102, paragraph 2 of the SCC). In addition, principals can be held lia - ble for having failed to prevent bribery committed by employees under their supervision.
In practice, it is often challenging to distinguish prohib - ited bribes from legal payments qualified as commis - sions of intermediaries, goodwill payments, sponsor - ship or market-conditioning expenditures. Similarly, the issue of whether the beneficiary of a payment is to be qualified as a corrupted person or as a legitimate local agent or lobbyist can be subtle. Bribery of Swiss Public Officials Four offences can be distinguished in relation to the bribery of Swiss public officials: • active bribery of Swiss public officials (Article 322 ter of the SCC); • passive bribery by Swiss public officials (Article 322 quater of the SCC); • the granting of an undue advantage to Swiss public officials (Article 322 quinquies of the SCC); and • the acceptance of an undue advantage by Swiss public officials (Article 322 sexies of the SCC). With regard to the constituent elements common to all types of bribery, reference should be made to the pre - liminary remarks. The following discussion is limited to elements that are specific to the bribery of Swiss public officials. The notion of a Swiss public official encompasses: • members of a judicial or other authority; • officially appointed experts, translators or interpret - ers; • arbitrators; and • members of the armed forces. Article 110, paragraph 3 of the SCC defines public officials as: • the officials and employees of a public administra - tive authority or of an authority for the administra- tion of justice; • persons who hold office temporarily at – or are employed temporarily by ‒ a public administrative authority or an authority for the administration of justice; or • persons who carry out official functions temporar - ily.
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