The Swiss Criminal Code on Corruption: Evolution & Developments
Switzerland and corruption
Switzerland is widely regarded as a bastion of financial stability and commercial efficiency in Europe. The country's open-market economic policies and competitive corporate tax rates have established it as a preferred hub for global commodity traders. However, the commodities trading sector is an industry that is particularly vulnerable to bribery, especially in international relations, where not only the companies themselves, but also their agents, intermediaries and distributors regularly deal with foreign authorities, including public officials.
The forthcoming public trial of a major commodities trading company by the Swiss Federal Criminal Court has once again highlighted the pervasive challenge of bribery in the commodities industry. This case clearly illustrates the approach of the Swiss justice system in its efforts to combat corruption within its borders.
In Switzerland, the act of bribing a foreign public official is considered a criminal offence under Article 322septies of the Swiss Criminal Code (SCC). With the introduction of corporate criminal liability in Article 102 SCC not only individuals but also Swiss and foreign companies can be held liable. As we discuss in this article, this forces companies to change their behaviour and implement measures to prevent corruption.
This article examines the Swiss authorities' approach to corruption, exploring the evolution of Swiss criminal law in this regard and the development of anti-bribery tools. The aim of this examination is to highlight the consequences for individuals and companies as well as the measures required to maintain their ethical standing in the global marketplace.
The evolution of the Swiss criminal code on bribery
The Swiss Criminal Code addresses the issue of bribery in Articles 322ter to 322novies. These provisions cover a wide range of conduct. In particular, the Swiss Criminal Code deals with the following bribery laws:
- Bribery (active and passive) of Swiss public officials (Articles 322ter and 322quarter SCC)
- Bribery (active and passive) of foreign public officials (Art. 322septies SCC)
- The granting and accepting of a benefit (Articles 322quinquies and 322sexies SCC)
- Bribery (active and passive) of private individuals (Articles 322octies and 322novies SCC)
In addition to individuals, companies can also be held liable if they fail to take the necessary organisational measures to prevent such offences. International and Swiss anti-corruption standards, including codes of conduct, industry agreements and corporate standards, provide a framework for this assessment.1
Criminal liability for individuals in Switzerland
Prior to the 21st Century, Swiss criminal law dealt exclusively with domestic bribery.2 In response to growing international pressure, Switzerland began a process of adapting its legal framework to international standards. Following the ratification of the OECD Anti-Bribery-Convention3 on 31 May 2000, Switzerland undertook a comprehensive reform of its criminal law on corruption, starting with the inclusion of foreign bribery. The introduction of Article 322septies SCC, which came into force on 1 May 2000, established that active bribery of foreign public officials is a criminal offence.4 Following Switzerland's ratification of the Council of Europe Criminal Law Convention on Corruption, a new paragraph was added to Article 322septies SCC, which came into force on 1 July 2006 and criminalised passive bribery, defined as the acceptance of bribes by foreign public officials.
On 25 September 2015, the Federal Parliament adopted an amendment to the criminal provisions on bribery, which came into force on 1 July 2016. Prior to this amendment, the criminalisation of bribery in the private sector was only provided for in Articles 4a and 23 of the Unfair Competition Act (UCA). The main objective of the UCA is to "ensure fair and genuine competition in the interest of all parties concerned" (Article 1 UCA). Consequently, the UCA defines "private bribery" as "any conduct or business practice that is misleading or otherwise contrary to the principle of good faith, so as to affect relations between competitors or between suppliers and customers, and that is unfair and unlawful" (see Article 2 UCA). The provisions of the UCA relating to private bribery were considered to be insufficiently effective and the enforcement rate was low. This was due to the need for Swiss prosecutors to prove that the corrupt behaviour in question had an impact on the fairness of relations between competitors, which was extremely if not impossible to do in practice.
In view of these limitations, the Swiss legislator opted to incorporate the offence of private bribery into the Swiss Criminal Code, thereby severing its link to economic competition. Another notable difference between the previous legislation and the new provision in the SCC on private bribery is that the latter provides for ex officio prosecution (except in minor cases), in contrast to the UCA, which required a formal complaint to be filed within three months of the identification of the offender in order to start a prosecution. The competent prosecutor may initiate an investigation and press charges independently based on reports from police, law enforcement agencies, or regulatory bodies that encounter evidence of corruption or bribery during their audits, inspections, or regulatory activities. In some cases, such offences are being reported by whistleblowers, i.e. individuals who witness or become aware of bribery. Furthermore, information from foreign law enforcement or judicial authorities, often obtained through mutual legal assistance treaties, can also alert the prosecutor to potential bribery cases. Finally, it is not uncommon for companies to proactively self-report instances of bribery discovered internally, such as through their compliance programmes, reflecting a commitment to transparency and ethical business practices. These legislative amendments were intended to strengthen the enforceability of the anti-bribery provisions and to make it clear that private bribery is punishable and will not be tolerated in Switzerland.
Corporate criminal liability in Switzerland
Furthermore, with regard to the issue of corporate criminal liability (Article 102 SCC), as discussed in the introduction, companies are encouraged to implement compliance and prevention programmes in order to protect themselves in the event of a violation within their organisation by relying on the measures put in place.5 These compliance systems not only ensure that future behaviour is in compliance with the Swiss anti-corruption legislation but they also serve to foster an internal culture of corporate ethics. The nature and scope of the required compliance structures, processes and measures depend on the respective risk profile of the company.6 To evaluate the specific risks, it is advisable to conduct a compliance risk analysis. This tool enables companies to increase the efficacy of the compliance programme, taking into account various factors, such as the company's regulatory environment, industry and size, business model and foreign activities, as well as any compliance violations in the company's history.7
Corporate Code of Conduct
In order to prevent economic crime, companies often implement internal guidelines in the form of a “code of conduct” which sets out the company's ethical principles. The corporate code of conduct will often also include various policies including the anti-bribery policy. These rules and policies should be made easily accessible to all employees, relevant third parties and foreign subsidiaries. However, having a compliance system in place that is not followed within the company is not enough. Therefore, larger companies often employ a “compliance officer” who is responsible for overseeing compliance programmes and is required to have an adequate level of experience and qualification. This oversight role includes continuous monitoring of business partners throughout the business relationship. The contractual provisions with third parties may seek to ensure that no incentives for bribery are created, for example by making sure that payment terms are appropriate. Companies may also include contractual termination rights to deal with incidents of bribery by their business partners. Ideally, the regulations also address the grey areas between what is permitted and what is prohibited, particularly in connection with facilitation payments, hospitality and gifts. Finally, companies may provide periodic training on the anti-corruption compliance for their employees and regularly conduct reviews and testing to ensure the efficacy of their system.
In addition to this preventive approach, it is also important for companies to ensure that incidents of bribery are being identified. For this purpose, companies should establish a confidential internal reporting mechanism and provide easily accessible reporting channels. In case of suspected bribery, the company is expected to proactively investigate misconduct, to collaborate with the competent authorities and to engage with remediation.
However, it is important to understand that compliance measures that meet strict requirements may only lead to mitigation of the sanction. Even a comprehensive compliance system does not necessarily fully exclude corporate criminal liability. Only if the competent authority is convinced that the company in question has taken all the necessary organisational measures to prevent corruption, will the company avoid criminally liability. On the other hand, the failure to provide such proof can lead to significant penalties, fines and, in some cases, even personal liability for the members of the company's board. Establishing a solid anti-corruption compliance programme is an effective way to minimise the risk of criminal liability, especially for trading companies exporting to difficult emerging markets where the risk of corruption is particularly high. At the same time, appropriate compliance efforts can contribute to a positive corporate image among stakeholders. Furthermore, compliance obligations are often imposed in complex supply and value chains, so that an effective compliance system can become a competitive advantage.8
Despite the introduction of these legislative changes condemning corruption in its various forms, it is only recently that we have begun to see the judicial outcomes of these provisions. While the number of companies accused and convicted of corruption remains relatively modest, there has been a notable increase in such cases in recent years.
In December 2023, a major foreign commodities trading company was indicted and sent to trial, likely in 2025, before the Swiss Federal Criminal Court on charges of corrupting an Angolan public official between 2009 and 2011. The company is accused of violating Article 322septies (1) SCC in conjunction with Article 102 (2) SCC.9 The decision of the Swiss Federal Prosecutor's Office (SFPO) to proceed with a public trial against this company and its executives appears to be an attempt by the SFPO to publicise this type of prosecution and to send a clear signal to the market that the SFPO is not tolerating this type of behaviour and are taking all necessary measures to bring the perpetrators to justice, even if the corrupt payment was made several years ago, subject to the statute of limitation, and abroad.
Concluding Remarks
This is the first time that a company will be judged publicly for bribery by the Swiss Federal Criminal Court. It represents a logical development in the ongoing anti-corruption campaign in Switzerland. While this case is groundbreaking at this level, it is likely that we will see similar cases in the future, reflecting the growing seriousness with which corruption is being tackled in Switzerland.
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1 Decision of the Swiss Federal Criminal Court SK.2020.21 from 15 December 2021, c. 3.3.4.
2 Nicolas Queloz/MarcoBorghi, Processus de corruption en Suisse, Fribourg 2000, p. 334.
3 The OECD Anti-Bribery Convention establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions, and includes provisions for establishing measures to prevent bribery, enforce anti-bribery laws, and promote international cooperation in the investigation and prosecution of bribery cases.
4 Bertrand Perrin, Corruption active d’agents publics étrangers : Quels risques pour les entreprises et leurs collaborateurs ?, in : ECS 4/09 p. 264 ; Swiss Federal Council, Message du 14 décembre 2004 concernant l’approbation et la mise en œuvre de la Convention pénale du Conseil de l’Europe sur la corruption et du Protocole additionnel à ladite convention (Modification du code pénal et de la loi fédérale contre la concurrence déloyale), in : FF 2004 p. 6549 et seq. ; Perrin, p. 264.
5 Ursula Cassani, Evolutions législatives récentes en matière de droit pénal économique : blanchiment d’argent et corruption privée, in : RPS 136/2018 p. 179 et seq., p. 211.
6 Martin R. Schulz, Regelbefolgung als Herausforderung – Leitlinien für ein wirksames Compliance Management, CB 2023 p. 160.
7 Martin R. Schulz, Compliance Management im Unternehmen, Erfolgsfaktoren und praktische Umsetzung, second edition, 2021, p. 17.
8 Julia Kahlenberg/Simon Schäfer/Anita Schieffer in Markus Busch/Elisa Hoven/Mark Pieth/Markus Rübenstahl (eds.), Antikorruptions-Compliance, 2020, chapter 33, para. 3 et seqq.
9 Federal Public Prosecutor’s Office, Press releases, TRAFIGURA BEHEER BV and three individuals referred to the Federal Criminal Court, www.admin.ch/gov/fr/accueil/documentation/communiques.msg-id-99242.html (last reviewed on 30 August 2024).
