On July 1 2016, new rules against bribery in the private
sector entered into force. Their aim is to provide a more
effective legal framework for the prosecution of private sector
bribery in view of Switzerland's globalised economy, as well as
the numerous international sports associations headquartered in
To date, bribery in the private sector has only been
regulated by the Swiss Act against Unfair Practices. The
relevant provisions were only applicable if private sector
bribery distorted competition. As of July 1 2016, this will no
longer be the case. Private sector bribery is now codified as
an offence in the Swiss Criminal Code, which broadens its scope
of application. It now also covers, for example, corrupt
conduct in connection with the granting of sports events such
as the Olympic Games or the football World Cup.
Further, private sector bribery now constitutes a public
offence unless it is deemed to be a so-called minor case.
Prosecution of private sector bribery will therefore no longer
depend on filing a criminal complaint in all cases. However, as
the new provisions do not specify what qualifies as a minor
case, it is uncertain what will fall into this category.
What remains unchanged under the new rules is the maximum
penalty for private sector bribery of three years imprisonment
or a fine. This also means that, as was the case before,
private sector bribery does not qualify as a predicate offence
to money laundering.
For companies, it is important to note that active private
sector bribery may lead to concurrent corporate criminal
liability. Therefore, a company may be penalised in addition to
its employee if it is responsible for failing to take all
reasonable organisational measures required to prevent the
offence. While this also applied under the old regime, the
broader scope of the new rules and the qualification of private
sector bribery as a public offence (except in minor cases) will
lead to a higher exposure of companies to prosecution.
This risk may be addressed by means of employee training,
specific checks and controls, and whistleblower hotlines. In
addition, contracts for the provision of goods and services can
be amended and internal codes of conduct can be adjusted, if
necessary. In the context of M&A transactions, companies'
higher exposure will need to be taken into consideration in due
diligence and purchasers' contractual protection.
Andreas Länzlinger, Beda Kaufmann and Roman