No Transfer Of Corporate Criminal Liability By Merger: Swiss Federal Criminal Court Dismisses Proceedings Against UBS

A. Background

In the "Hidden Debt" matter (relating to lending by Credit Suisse to Mozambican state-owned enterprises), the Office of the Attorney General of Switzerland (OAG) filed charges against UBS for corporate criminal liability under Art. 102 SCC on 15 December 2025. The indictment alleged organizational failures within Credit Suisse that were said to have enabled acts of money laundering, and the OAG took the view that criminal liability had passed to UBS through the absorption merger with Credit Suisse. UBS moved for dismissal, arguing that following the merger no viable subject of prosecution remained.

B. The Court's Reasoning

In its ruling of 8 April 2026 (SK.2025.57b), the Federal Criminal Court (single judge Fabbri) accepted the bank's reasoning and rejected the view that corporate criminal liability can be transferred under Swiss law in the context of a merger by absorption.

The Court's considerations can be summarized as follows:

• Qualified legislative silence, not a gap to be filled. The legislator deliberately refrained from regulating the consequences of a merger for corporate criminal liability. Rather, the legislative materials show that it was simply assumed that the rules applicable to natural persons would apply mutatis mutandis; a separate regime for corporates was considered unnecessary.
• No economic-functional concept of "undertakings". Art. 102 para. 4 SCC sets out an exhaustive list of the entities that qualify as "undertakings" within the meaning of Art. 102 para. 1 SCC. Under the principles of legality (Art. 1 SCC) and nulla poena sine lege (Art. 7 ECHR), criminal liability cannot be established without a sufficiently precise statutory basis, nor may it be extended beyond the addressees envisaged by the legislator. The single judge thus expressly departs from a recent ruling of the Federal Criminal Court's Appeals Chamber (CN.2024.18 of 19 August 2024) and rejects the OAG's argument that the acquiring entity should be treated as the continuation of the absorbed company in a social or economic-functional sense. In any event, even under a more permissive approach, as advocated by some scholars, the required continuity would be lacking here: prior to the merger, the acquiring entity exerted no influence whatsoever over the absorbed entity's organization or compliance, and it assumed neither the impugned internal frameworks nor any ongoing contracts through which the alleged defect could have been perpetuated.
• Concepts of civil-law succession do not apply in criminal law. Unlike in civil law where liability may pass by universal succession, criminal liability, by contrast, requires personal guilt: a criminal sanction expresses individual wrongdoing and is not a mere consequence of asset-based attribution. Criminal liability cannot, therefore, be transferred by means of civil-law succession concepts. On this basis, the single judge endorses the prevailing scholarly view rejecting transfer.
• The absorbed entity ceased to exist as a subject of criminal law. With the deletion from the commercial register, the absorbed entity ceased to exist not only under company law but also as a subject of criminal law. Criminal liability accordingly did not pass through the merger, and the proceedings must be dismissed on account of a procedural bar (Verfahrenshindernis).
• Procedural safeguards against abuse. The OAG's policy concern that corporate restructurings could produce de facto impunity is adequately answered by existing instruments. In particular, prosecutors may obtain a block on commercial register changes (Handelsregistersperre) based on criminal procedural law.

In any event, the merger at issue here was state-driven under emergency legislation, which rules out any suspicion of abusive restructuring designed to evade prosecution.

C. Significance and Outlook

This is the clearest first-instance rejection to date of criminal universal succession in the context of a merger. The Federal Criminal Court's reasoning on an important issue of Swiss corporate criminal law is persuasive, as it is grounded strictly in general principles of criminal law, and is therefore to be welcomed.

Interestingly, the single judge's decision openly conflicts with a recent ruling of the Appeals Chamber of the same court (CN.2024.18). So far, the Federal Supreme Court has not yet had the opportunity to address the issue.

The practical consequence of the decision is clear: prosecutors wishing to preserve corporate criminal liability despite a merger must take timely procedural safeguard measures (in particular a commercial register block). Any broader fix beyond Art. 102 SCC is, as the single judge emphasizes, a matter for Parliament, not the courts.