SWITZERLAND Trends and Developments Contributed by: Andrea Taormina and Lisa Maria Clavadetscher, taormina law AG
Corporate criminal liability under the Swiss Criminal Code Corporate criminal liability constitutes an exception to the general principle of exclusive criminal responsibil - ity of individual persons. It entered into force in Swit - zerland more than 20 years ago. This legal framework permits the criminal liability of undertakings and was introduced as part of the revision of the General Part of the Criminal Code, inter alia as an implementation of the United Nations Convention for the Suppression of the Financing of Terrorism. In Switzerland, corporate criminal liability is governed by Article 102 of the Swiss Criminal Code (SCC). According to Article 102, paragraph 1 SCC, a felony or misdemeanour committed within an undertaking in the exercise of commercial activities, in accordance with the objects of the undertaking, is attributed to the undertaking if it is not possible to attribute the act to any specific natural person due to the inadequate organisation of the undertaking. In such cases, the undertaking shall be liable to a fine not exceeding CHF5 million. Pursuant to Article 102, paragraph 2 SCC, an under - taking is penalised in respect of certain offences, such as money laundering under Article 305bis SCC, irrespective of the criminal liability of any natural per - sons, if the undertaking has failed to take all reason - able organisational measures required to prevent the offence. According to Article 102, paragraph 4 SCC, undertak - ings are any legal entity under private law (letter a), any legal entity under public law, with the exception of local authorities (letter b), companies (letter c) or sole proprietorships (letter d). The enumeration in Article 102 SCC is exhaustive. Jurisprudence in Switzerland General remarks In general, Article 102 SCC is of large practical signifi - cance but is hardly ever tried in court (see for the cas - es of the Falcon Private Bank (FCC, CA.2022.12 of 30 June 2023) and CS (FCC, CA.2023.20 of 26 November 2024), which was acquitted in the second instance).
Corporate Criminal Liability in Mergers In early 2023, the Credit Suisse Group AG (CS) experi - enced a severe confidence and liquidity crisis, report - edly bringing it to the brink of collapse. In response, the Swiss authorities intervened and co-ordinated a takeover solution. In March 2023, it was announced that the UBS Group AG (UBS) would acquire CS. The acquisition was completed in June 2023 and led in May 2024 to the merger by absorption of CS into UBS. The demise of CS and its integration into UBS had a significant impact on the Swiss financial market and continues to raise various legal questions, includ - ing in the areas of obligations law, merger law and cor - porate criminal law. This section examines the merger from a corporate criminal law perspective. Research question and analysis Against the backdrop of CS’s demise and its takeo - ver by UBS, the question arises whether a company’s criminal liability ceases in the course of structural reor - ganisations, or whether continuity of liability should be assumed. The following section examines whether, in the case of a merger, the criminal liability of a company that ceas - es to exist and is removed from the commercial regis - ter is transferred to the acquiring company. As noted above, this question is not only of theoretical interest but also of considerable practical significance. The courts have already addressed this issue, although no final binding decision has yet been rendered. To address the research question, it is first necessary to briefly explain what is meant by corporate criminal law in Switzerland. In a second step, the existing juris - prudence concerning CS and UBS will be presented. Subsequently, taking into account the fundamental principles of criminal law and the jurisprudence of the European Court of Human Rights, it is demon - strated why, in our view, the existing jurisprudence is flawed. Finally, a conclusion is drawn on the basis of the insights obtained, followed by a brief overview of recent developments and an outlook.
212 CHAMBERS.COM
Powered by FlippingBook