SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
An undue advantage, within the meaning of the provisions relating to anti-bribery and anti- corruption in Switzerland, may be tangible or intangible. A tangible advantage is any measur - able improvement, be it a cash payment, a pay - ment in kind or a legal improvement. Intangible advantages are, for example, social or profes - sional advantages. The advantage is undue if the offender is not authorised to accept it. As mentioned earlier, active and passive bribery require that the undue advantage be offered, promised or given to cause the bribed person to carry out (or to fail to carry out) an act in con - nection with their official activity that is contrary to their duty or dependent on their discretion. Therefore, the following conditions are neces - sary: • 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 per - son’s duty or dependent on their discretion; and • the undue advantage must be offered, prom - ised 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 provi - sion under public law (ie, under labour law and their employment contract describing their duti - ful conduct). Alternatively, this condition is also met if the bribed person’s act is dependent on their discretion. The bribed person’s determina - ble consideration is deemed an undue advan - tage if there is a sufficient connection between
the bribed person’s behaviour and the undue advantage granted by the bribing person. With regards to all types of bribery, the undue advantage does not need to be offered, prom - ised 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 advantage is offered, promised or given to the bribed person – regard - less of whether the results expected by the involved persons actually occur. Under Swiss criminal law, the failure to prevent bribery is not an offence. However, a compa - ny 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 rea - sonable organisational precautions necessary to prevent bribery (Article 102, paragraph 2 of the SCC). In addition, principals can be held liable for having failed to prevent bribery committed by employees under their supervision. 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 322ter of the SCC); • passive bribery by Swiss public officials (Arti - cle 322quater of the SCC); • the granting of an undue advantage to Swiss public officials (Article 322quinquies of the SCC); and • the acceptance of an undue advantage by Swiss public officials (Article 322sexies of the SCC). With regard to the constituent elements com - mon to all types of bribery, reference should be
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