SWITZERLAND Trends and Developments Contributed by: Andrea Taormina and Lisa Maria Clavadetscher, taormina law AG
With regard to the present issue – the transfer of crimi - nal liability in the context of mergers – only a non-final decree of the Higher Appeals Chamber of the Federal Criminal Court has been issued to date. This concerns the CS/UBS case, which is set out below. The CS / UBS case By judgment of 27 June 2022, the Criminal Cham - ber of the Federal Criminal Court determined that between July 2007 and December 2008, there were organisational deficiencies at CS that allowed a former employee to commit qualified money laundering. As a result, CS was convicted under Article 102, paragraph 2 SCC in conjunction with Article 305bis SCC and was fined CHF2 million. A notice of appeal was filed against the judgment. As mentioned above, CS merged with UBS in May 2024, whereby CS was dissolved as part of the merger by absorption and removed from the commercial reg - ister. UBS’s legal representatives therefore requested the discontinuation of the criminal proceedings. Subsequently, in its non-final decree, the Higher Appeals Chamber of the Federal Criminal Court exam - ined the concept of an “undertaking” under Article 102 SCC. In this context, it held that it would appear inap - propriate and, in certain circumstances, excessively formalistic to link the existence of an undertaking solely to its registration or deletion in the commercial register. Against this background, the criterion of eco - nomic and functional continuity would be preferable over a purely formal approach. In concreto, the court held that a merger by absorption would not neces - sarily constitute an obstacle to the continuity of an undertaking’s economic and functional activity (FCC, CN.2024.18 of 19 August 2024, consid. 3.2.1 et seq.). Moreover, the Higher Appeals Chamber held that this does not, in principle, constitute a breach of the prin - ciple of personal criminal responsibility under Article 6 of the European Convention on Human Rights (FCC, CN.2024.18 of 19 August 2024, consid. 3.2.2). In this context, it referred to the European Court of Human Rights decision Carrefour France v France , in which a similar, though not identical, factual scenario was examined.
On this basis, in its decree of 19 August 2024, the Higher Appeals Chamber ruled that the proceedings concerning CS should be continued in relation to UBS. UBS subsequently lodged an appeal with the Federal Supreme Court of Switzerland; the proceed -
ings are currently pending there. Critique of the jurisprudence Fundamental principles of criminal law (i) Principle of culpability
Criminal sanctions require an individual attribution of fault. Punishment that is independent of culpability is incompatible with the principle of culpability (nulla poena sine culpa). Accordingly, the principle of cul - pability prohibits sanctioning an accused – whether it is an individual person or a legal entity – without being able to attribute to it its own culpable conduct. Criminal liability cannot, for example, pass to legal successors, such as heirs. The Swiss Criminal Code does not stipulate strict liability. Corporate criminal liability under Article 102 SCC is likewise subject to the principle of culpability. A sanc - tion therefore presupposes that an organisational fault can be attributed to the undertaking. The undertaking is either accused of having failed to organise its com - mercial activities in such a manner that it is possible to attribute the criminal offence to a specific individual person, or of not having taken all organisational meas - ures to prevent the criminal offense. (ii) Principle of legal certainty and prohibition of anal - ogy Article 1 SCC and Article 7, paragraph 1 of the Euro - pean Convention on Human Rights guarantee the principle of legal certainty in criminal law (nulla poena sine lege). This principle, in conjunction with the prohi - bition of analogy, is designed to prevent any individual from being confronted with criminal offences for which they could not have anticipated liability at the time of the act. No punishment may be imposed without a pre-existing legal basis. The prohibition of analogy further reinforces the sepa - ration of powers by prohibiting prosecuting authori - ties and courts from creating new criminal norms
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