SWITZERLAND Law and Practice Contributed by: Roman Huber, Cristina Ess and Lea Ruckstuhl, Kellerhals Carrard
a reason unrelated to the nature of the offence (as per Article 7, paragraph 2(a) of the SCC). 3.3 Corporate Liability As explained in 2.1 Bribery , under Swiss criminal law (Article 102, paragraph 2 of the SCC), a com - pany will be penalised for an offence committed by an individual within the company ‒ irrespec - tive of the criminal liability of any natural persons – if the company failed to take all the reasonable organisational measures necessary to prevent such an offence. In corporate groups, criminal liability can only be attributed to the group company in which the offence was committed. As such, the mother company is – in principle – not responsible for the offences committed in the subsidiary com - pany unless it had operative control over the latter and is therefore deemed responsible for the lack of organisational measures in the sub - sidiary. Generally speaking, a person or corporation accused of bribery can raise defences that per - tain to the objective and subjective requirements of the relevant provision (see 2. Bribery and Cor- ruption Elements ). In particular, it can be argued that: • a minor gift does not qualify as an undue advantage in the sense of Article 322ter of the SCC; • whoever was offered or demanded the undue advantage does not have the status of a for - eign public official (as per Article 322septies of the SCC); 4. Defences and Exceptions 4.1 Defences
• the undue advantage was not offered “in order to cause” the public official to act contrary to their duties (lack of “equivalence link”); • the public official who was offered or demanded the undue advantage did not have any influence on the carrying out of the relevant official act; • the offender did not act with intent – or at least not with conditional intent (dolus even - tualis) – in relation to all objective require - ments of the offence; • in the case of corporate liability, the corpora - tion took all reasonable organisational meas - ures required to prevent the offence; or • in the case of insufficient organisational measures, the lack of such measures did not lead to the commission of the offence. 4.2 Exceptions There are no exceptions to the defences men - tioned under 4.1 Defences . 4.3 De Minimis Exceptions As outlined in 2. Bribery and Corruption Ele- ments , Article 322decies, paragraphs 1(b) and 52 of the SCC set out certain de minimis excep - tions. 4.4 Exempt Sectors/Industries There are no sectors or industries that are exempt from the offences discussed in this chapter. 4.5 Safe Harbour or Amnesty Programme Swiss law does not contain specific provisions that reward spontaneous reports of irregulari - ties by natural persons or corporations. How - ever, self-reporting followed by co-operation during proceedings may be taken into account by the criminal authorities when determining a sentence (Article 102, paragraphs 3, 47 and 48 of the SCC).
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