SWITZERLAND Trends and Developments Contributed by: Andrea Taormina and Lisa Maria Clavadetscher, taormina law AG
holding it responsible for the fault of another entity. Such criminal vicarious liability is, in our view, clearly inconsistent with the principle of culpability and would moreover, as already explained, also contravene the principles of legal certainty and the prohibition of anal - ogy. Jurisprudence of the European Court of Human Rights Generals remarks Finally, it is worthwhile to consider the jurisprudence of the European Court of Human Rights in Carre- four France v France , as cited by the Higher Appeals Chamber of the Federal Criminal Court. On the one hand, this excursus is interesting because it seems that the Higher Appeals Chamber of the Federal Criminal Court has misunderstood that jurisprudence or failed to take into account significant differences between the case Carrefour France v France and the case involving CS/UBS. We will demonstrate that the interpretation advanced here, when considered in light of the fundamental principles of criminal law, is also consistent with the jurisprudence of the European Court of Human Rights. To this end, the facts of the case of Carrefour France v France are first set out and then analysed in light of A subsidiary of Carrefour engaged in anti-competitive practices. Following its merger with the parent com - pany (Carrefour), the latter was subjected to a civil fine for the prior infringements committed by the sub - sidiary. The applicant (Carrefour) alleged a violation of the principle that penalties may be imposed only on the offender. The French courts rejected this argu - ment, reasoning that the merger had resulted in eco - nomic and functional continuity. The European Court of Human Rights found no violation of Article 6 of the European Convention on Human Rights, which guar - antees the principle of personal criminal responsibility. The decisive reason for this conclusion lies in the fact that Carrefour France v France differs in material respects from the case involving CS/UBS. the question at issue. Summary and analysis The facts can be summarised as follows.
The most important differences may be summarised as follows. • In the case of Carrefour France v France , the mat- ter concerned civil fines rather than criminal penal - ties. Article 102 SCC forms part of core criminal law, and therefore concerns criminal sanctions. • The applicable French law explicitly defined an economic concept of the undertaking, whereas Article 102, paragraph 4 SCC does not provide for this. • Furthermore, in the case of Carrefour France v France , the parent company controlled and domi - nated the subsidiary at the time of the infringe - ments, whereas the UBS exercised no influence over Credit Suisse at the time of the alleged offences. Of decisive importance is also that the European Court of Human Rights recognises an economic con - cept of the undertaking only outside criminal law, and not within core criminal law (ECHR, Carrefour France v France , 1 October 2019, No 37858/14, para. 46). Article 102 SCC, however, clearly belongs to core criminal law. Consequently, the conclusion of the Higher Appeals Chamber, that there is no violation of the principle of personal criminal liability under Article 6 of the Euro - pean Convention on Human Rights, is not correct. It disregards essential parts of the judgment of the European Court of Human Rights. In this respect, it is as if the Chamber is comparing apples and oranges. Conclusion In summary, it is our view that the concept of the undertaking in Article 102, paragraph 4 SCC must be interpreted as a legal concept, and not as a social or economic entity. Any other interpretation would be contrary to the principle of legal certainty and the pro - hibition of analogy. Consequently, in the context of a merger, the term “undertaking” cannot be understood as referring to the acquiring company. A transfer of criminal liability in the course of a merger is therefore impermissible, as the acquiring company cannot be held responsible for the criminal acts of the transferring company. This conclusion is consistent
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