SWITZERLAND Law and Practice Contributed by: François Micheli, Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
reporting (Article 964a et seq of the CO/Article 325 bis and Article 325 ter of the SCP), the CO does not pro - vide for an explicit basis for (civil) liability in the event of insufficient due diligence related to reporting duties. 6.2 Voluntary Disclosure Incentives A confession may lead to a reduced penalty if the perpetrator proves genuine remorse, compensates for the financial damage caused and thereby facilitates the criminal prosecution (Article 48 (d) of the SCC). Furthermore, a perpetrator can apply for accelerated proceedings if he or she is prepared to admit the rel - evant facts. In this case, whether the admission is made at a relatively late stage of the proceedings, without remorse and only under the pressure of the criminal proceeding, is not relevant. Typically, the pen - alty negotiated and imposed in accelerated proceed - ings will be of a lesser severity. In case of criminal organisations, the court has the discretion to mitigate the penalty imposed if the per - petrator makes an effort to foil the criminal activities of the organisation by co-operating with the criminal authorities (Article 260 ter (4) of the SCC). Apart from this, Swiss law does not contain specific provisions to reward voluntary reports of irregularities or co-operation by natural persons or corporations. However, in practice, self-reporting or co-operation during proceedings is generally taken into account by the criminal authorities when determining a sentence. Since voluntary co-operation usually leads to a facili - tation of prosecution, the procedural costs imposed 6.4 Protections Afforded to Whistle-Blowers Currently, there is no specific Swiss law granting pro - tection to whistle-blowers in the private sector. The competent courts decide on a case-by-case basis whether the reporting of irregularities is legitimate. Swiss courts apply a balancing of interests test to assess whether the employee’s notification of an irreg - ularity to the employer, the authorities or the media was lawful and examine the facts of each individual on the perpetrator may be lower. 6.3 Self-Disclosure Procedures See 6.2 Voluntary Disclosure Incentives .
case (primarily in relation to the employee’s duty of loyalty). However, it is regarded as best practice to have reporting mechanisms in place that adequately pro - tect the whistle-blower from negative consequences. The termination of an employee solely on the grounds of lodging a complaint may constitute an unfair dis - missal under Swiss law. In the public sector, under the relevant cantonal or federal Personnel Acts, Swiss officials may be required to report crimes and offences to their supervisors, or directly to the criminal authori - ties. The EU Whistleblowing Directive The Directive (EU) 2019/1937 of the European Parlia - ment and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law (commonly known as the “EU Whistleblowing Directive”) entered into force in December 2019, and EU member states were required to implement the requirements resulting from the Directive into national law by December 2021. As Switzerland is not an EU member state, there is no obligation to implement the EU Whistleblowing Directive into national law. Nev - ertheless, Swiss companies with business branches in the EU, and which have at least 50 employees, may fall within the scope of the EU Whistleblowing Directive. Compliance with the requirements of the EU Whistleblowing Directive can therefore also be of great importance to Swiss companies. 6.5 Incentives Provided to Whistle-Blowers There are no specific incentives for whistle-blowers to report bribery or corruption in Switzerland. In practice, many corporations have established mechanisms for employees to report suspected or actual misconduct to an independent person, and corporations some - times encourage or oblige employees to report sus - picions of bribery to the compliance department, an external lawyer or a specific whistle-blower portal. Upon such reporting, an employer may choose to waive its right to take civil action against the reporter, even if said reporter is involved in the bribery or cor - ruption. An employer’s waiver, however, does not pro - tect the employee from prosecution by the criminal authorities.
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