Answer ... There is no general regulatory requirement to introduce an anti-corruption compliance programme. However, certain prudentially supervised entities (eg, banks) are under a regulatory obligation to introduce such a programme.
Answer ... Companies may, for example, implement International Standardisation Organisation (ISO) Standard 37001on anti-bribery management systems to treat active and passive bribery risks. The implementation of this tool requires a series of measures. Furthermore, ISO 37001 as a specific ‘technical’ standard can easily be combined with ISO 19600 as a basic framework. Other soft law regulation should also be considered. Such guidance is publicly available – for example, the Swiss Code of Best Practice for Corporate Governance (www.economiesuisse.ch/sites/default/files/publications/economiesuisse_swisscode_e_web_2.pdf). Soft law regulation should be incorporated in a respective company’s internal directives and guidelines, and the company must ensure that employees observe such internal regulation.
While the application of these standards does not create a safe harbour and does not guarantee protection from criminal liability, it is certainly an effective precautionary tool to support other measures and to strengthen a company’s protection against anti-corruption sanctions.
Answer ... Accounting legislation is mainly to be found in Articles 957 and following of the Code of Obligations. Legally accepted standards for books and records are International Financial Reporting Standards (IFRS), IFRS for small and medium-sized enterprises, Swiss generally accepted accounting principles (GAAP), US GAAP and the International Public Sector Accounting Standard for public sector entities. In regulated sectors such as the financial sector, a variety of additional special rules must be observed.
All legal entities as well as sole proprietorships and partnerships with revenues of at least CHF 500,000 in their last financial year must keep accounts and file financial reports according to Articles 957 and following of the Code of Obligations.
The board of directors of limited stock companies must organise and oversee the accounting, the financial controls and the financial planning systems as required for the management of the company (Article 716a, para 1 of the Code of Obligations).
In addition, according to Articles 727 and following of the Code of Obligations, with certain exceptions, Swiss limited stock companies are obliged to nominate external auditors.
Answer ... There is no specific reporting obligation concerning violations of anti-corruption and bribery laws or other financial irregularities; there are only general reporting duties in regulated sectors such as financial services. These duties exist with regard to compliance and reputational or operational risks. For example, financial services providers supervised by FINMA are under notification obligations in case of regulatory breaches. The same is true with regard to the SIX Swiss Exchange under so-called ‘ad hoc’ notification.
Furthermore, potential offences of the Swiss anti-money laundering regime must be reported to the Federal Money Laundering Reporting Office (MROS, www.fedpol.admin.ch/fedpol/en/home/kriminalitaet/geldwaescherei.html). MROS acts as an intermediary and conduit between financial intermediaries and law enforcement authorities. It receives and examines information about potentially illegal activities in connection with money laundering and relays them to the enforcement authorities. The legal basis is found in the Federal Act on Combating Money Laundering in the Financial Sector, especially Article 9 (reporting obligations of financial intermediaries) and Article 23 (money laundering reporting), and in Article 305ter of the Swiss Criminal Code (SCC).
Answer ... As previously indicated, companies may face criminal liability under Article 102 of the SCC if a crime is committed in the exercise of an employee’s functions and the company failed to implement an adequate anti-corruption programme to prevent such offences. However, anti-corruption provisions must have been infringed in order to sanction the failure to implement an adequate anti-corruption programme – the mere failure of compliance in itself is not sanctioned under Swiss law (ie, the mere failure to implement compliance measures is not liable to prosecution).
However, failure to implement an adequate anti-corruption programme may constitute a regulatory violation in the case of prudentially supervised entities such as banks.