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General context, key principles and hot topics

1 Identify the highest-profile corporate investigation under way in your country, describing and commenting on its most noteworthy aspects.

In the past few years, Swiss corporations and banks have been confronted with several multi-jurisdictional investigations relating to corruption, fraud, money laundering and tax evasion that have attracted considerable media attention.

Notable continuing investigations include that by the Office of the Attorney General (OAG) against a Swiss-based international commodities trading company for bribery. One recently concluded investigation concerns a Swiss-based energy and technology company reaching a settlement with the OAG in connection with the bribery of a high-ranking official at South Africa’s state-owned energy company. The settlement was closely coordinated – the company reached resolutions simultaneously with the US Department of Justice, US Securities and Exchange Commission and prosecutorial authorities in South Africa.

At the court level, there have been notable developments in corporate criminal liability cases. In December 2021, the Criminal Chamber of the Federal Criminal Court sanctioned a corporation that used to operate a bank with a fine of 3.5 million Swiss francs for a lack of adequate measures to prevent money laundering in connection with the Malaysian sovereign wealth fund 1MDB. This was the first criminal conviction of a financial institution by a Swiss court (however, in June 2023, the Higher Appeals Chamber of the Federal Criminal Court overturned the conviction). In June 2022, the Criminal Chamber of the Federal Criminal Court sanctioned one of Switzerland’s major banks with a fine of 2 million Swiss francs for a lack of adequate measures to prevent money laundering in connection with the Bulgarian mafia. The decision has been appealed.

Finally, the Swiss Financial Supervisory Authority (FINMA) remains busy with enforcements against banks and other financial institutions. Notable enforcement proceedings include one of Switzerland’s major banks in connection with events surrounding the collapse of Archegos Capital Management and Greensill Capital. FINMA conducted enforcement proceedings against the bank and concluded in February and July 2023 that the bank had seriously and systematically violated financial market laws. In addition, FINMA opened enforcement proceedings against several former managers of the bank.

2 Outline the legal framework for corporate liability in your country.

Corporate criminal liability in Switzerland can arise in two situations:

  • if it is not possible to attribute an offence to any specific individual because of the inadequate organisation of the corporation; or
  • if a corporation fails to take all necessary and reasonable organisational measures to prevent certain offences, such as bribery, corruption, financing of terrorism or money laundering.

The penalty in either case is a fine of up to 5 million Swiss francs.

Corporations may also be fined instead of the responsible individual if the investigations would be disproportionate compared with the penalty, and the penalty under consideration would not exceed the amount of:

  • 50,000 Swiss francs in criminal proceedings relating to a violation of the criminal provisions of the Federal Data Protection Act;
  • 50,000 Swiss francs in administrative criminal proceedings relating to offences against financial market laws; and
  • 5,000 Swiss francs in administrative criminal proceedings for other offences.

3 Which law enforcement authorities regulate corporations? How is jurisdiction between the authorities allocated? Do the authorities have policies or protocols relating to the prosecution of corporations?

There are no specific law enforcement authorities regulating corporations. Accordingly, there are no specific policies or protocols relating to the prosecution of corporations.

At cantonal level, criminal laws are enforced by the regional and cantonal prosecutors with the assistance of the police. Some cantons have specialist prosecutors’ offices to deal with business crimes.

At federal level, the OAG is responsible for prosecuting offences that are subject to federal jurisdiction (e.g., espionage, certain cases of corruption, inter­national organised crime and certain white-collar crimes). The Federal Department of Finance (FDF) is generally responsible for prosecuting offences against financial market laws (e.g., violation of duty to file a suspicious activity report or violation of disclosure rules).

In addition, government agencies enforce administrative laws and regulations. Important regulatory authorities at the national level are FINMA, which is responsible for monitoring financial institutions and enforcing the financial market legislation, and the Competition Commission (COMCO), which is responsible for monitoring companies for signs of anticompetitive conduct, combating harmful cartels and enforcing merger control legislation.

4 What grounds must the authorities have to initiate an investigation? Is a certain threshold of suspicion necessary to trigger an investigation?

The police, the prosecutors and the FDF are required to open an investigation once they become aware of a potential criminal offence.

FINMA will initiate an investigation if it has reason to believe that financial market laws and regulations have been violated. However, it has some discretion in deciding whether to open formal enforcement proceedings. For example, it may refrain from opening formal enforcement proceedings if a supervised entity fully cooperates and instantly implements all necessary remedial measures to ensure compliance with financial market legislation.

COMCO has adopted guidelines to establish the circumstances under which it will investigate antitrust violations. It usually opens an investigation when an alleged violation is serious or has a significant effect on the market, or when the case raises a legal question that warrants judicial clarification. COMCO usually declines to investigate complaints when the issue could be better solved through private litigation. It can also decline to investigate a complaint when the target business has already changed its policy, or when the target business agrees to adapt its market behaviour or contracts.

5 How can the lawfulness or scope of a notice or subpoena from an authority be challenged in your country?

In general, any orders from authorities can be challenged before the competent authorities and courts.

In criminal proceedings (including administrative criminal proceedings), records and objects must be sealed if the owner claims that they may not be searched or seized (e.g., owing to the attorney–client privilege). The authorities then have the possibility to file a request for the removal of the seal before the competent courts.

6 Does your country make use of cooperative agreements giving immunity or leniency to individuals who assist or cooperate with authorities?

Confessions and cooperation during the investigations in administrative criminal proceedings and in criminal proceedings may lead to a reduction in the sentence. However, there are currently no specific immunity or leniency rules in Swiss criminal laws for cooperation. Therefore, an individual must carefully assess the potential benefits and disadvantages and decide in each case whether he or she wants to cooperate with the authorities.

In enforcement proceedings, supervised entities and individuals are in general required to provide all information and documents that FINMA requests to fulfil its supervisory tasks. In this context, cooperation is not a mitigating factor but a statutory obligation. However, a supervised entity or an individual may be more able to negotiate an alternative resolution and to avoid formal enforcement proceedings if it agrees to cooperate with FINMA and take remedial measures.

COMCO has adopted a leniency policy that closely mirrors the model of the European Commission’s programme. Companies may be granted complete or partial immunity from sanctions if they self-report, hand over all available evidence and fully cooperate with COMCO. However, only the company that first reports a cartel may benefit from full immunity. Companies reporting subsequently may receive a reduction of their fine if they provide significant additional evidence.

In tax law, voluntary disclosure may lead to a mitigation or waiver of punishment if certain requirements are met.

7 What are the top priorities for your country’s law enforcement authorities?

In recent years, the focus of the Swiss law enforcement authorities has been on corruption, fraud and money laundering cases. The coronavirus pandemic accelerated the continuing drive towards digital transformation and digitalisation and, consequently, there has been an increase in reported cyberattacks and a rise in criminal proceedings in connection with cybercrime.

8 To what extent do law enforcement authorities in your jurisdiction place importance on a corporation having an effective compliance programme? What guidance exists (in the form of official guidance, speeches or case law) on what makes an effective compliance programme?

There is no universal legal requirement under Swiss law to have an effective compliance programme. However, failure to have an effective compliance programme may lead to corporate criminal liability (i.e., a fine of up to 5 million Swiss francs).

For some industry sectors (notably banking and insurance), there are rules requiring effective compliance processes and control functions. The requirements are listed in two circulars regarding corporate governance published by FINMA.

The State Secretariat for Economic Affairs (SECO) has published best practices for an Internal Control Programme for Export Controls (ICP) and a fact sheet for the ICP, as well as a guide to companies operating outside Switzerland on how to fight and prevent corruption. The latter contains high-level guidance on what an anti-corruption code of conduct should contain. It also refers to additional literature and guidance issued by, among others, Transparency International or the International Chamber of Commerce.

Cyber-related issues

9 Does your country regulate cybersecurity? Describe the approach of local law enforcement authorities to cybersecurity-related failings.

Currently, there is no specific piece of legislation regarding cybersecurity. Instead, cyber­security is scattered across a variety of Swiss laws and regulations.

Pursuant to the Federal Data Protection Act, personal data must be protected against unauthorised processing through adequate technical and organisational measures. Under the revised Act, which entered into force on 1 September 2023, the deliberate failure to comply with the minimum data security requirements is now punishable with a fine of up to 250,000 Swiss francs. In addition, the controller of personal data must notify the Federal Data Protection and Information Commissioner (FDPIC) as soon as possible of a data security breach that is likely to result in a high risk to the personality or the fundamental rights of the data subject. The controller must also inform the data subject if this is necessary for the protection of the data subject or if the FDPIC requests the information. Finally, it might be advisable to notify the data subjects affected by a breach based on the general data processing rules or contractual obligation (e.g., duty of care and loyalty).

Based on the Financial Market Infrastructure Act, financial market infrastructures are required to operate information technology systems that ensure the availability, confidentiality and integrity of data relating to participants and their transactions. Violations of these requirements might lead to investigations or, in serious cases, to formal enforcement proceedings by the Swiss Financial Market Supervisory Authority. Data breaches concerning data covered by Swiss bank secrecy, or other financial professional secrecy, may result in imprisonment for up to three years or a monetary penalty of up to 540,000 Swiss francs. In the wake of the pandemic’s increased dependency on information and communications technology, rendering financial institutions increasingly vulnerable to cyberattacks, supervised institutions were required to report any major cyberattacks on their critical functions to FINMA. Between September 2020 and the end of 2022, a total of 160 cyberattacks of substantial importance have been reported, most of which have affected banks, followed by insurance companies and asset managers. More than half of the cyberattacks against banks were directed against small institutions.

In addition, there are some sector-specific obligations to report data breaches, including in the financial services, telecommunications, aviation, railway and nuclear sectors.

It is also possible (though not an obligation) to inform the National Cyber Security Centre about cyber incidents. In December 2022, the Federal Council submitted to the Swiss parliament a dispatch on mandatory reporting of cyberattacks on critical infrastructures (e.g., universities, organisations with public service tasks in the areas of safety and rescue, drinking water supply, waste water treatment and waste disposal, companies that are active in the areas of energy supply, or banks).

10 Does your country regulate cybercrime? What is the approach of law enforcement authorities in your country to cybercrime?

There are several provisions in the Swiss Criminal Code that are specific to cybercrime, including unauthorised obtaining of data or unauthorised access to a data processing system. Depending on the circumstances, other criminal provisions may be applicable also, such as fraud, forgery, extortion, coercion and money laundering.

Switzerland is a member of the Budapest Convention on Cybercrime. The main objective of the Convention is to pursue a common criminal policy aimed at protecting society against cybercrime, especially by adopting appropriate legislation and fostering international cooperation.

Cross-border issues and foreign authorities

11 Does local criminal law have general extraterritorial effect? To the extent that extraterritorial effect is limited to specific offences, give details.

Generally, the Swiss authorities have jurisdiction over offences committed in Switzerland. An offence is deemed to have been committed in Switzerland if the accused person acted in Switzerland or the offence had effects in Switzerland.

In specific cases, Swiss courts also have jurisdiction over offences committed abroad, including:

  • offences against the Swiss state or its national security;
  • specific offences against minors (e.g., trafficking, sexual assault, rape);
  • offences that Switzerland undertook to pursue based on an international treaty if the offence is also punishable in the place abroad where it was committed; and
  • offences that are punishable both in Switzerland and the place abroad where they were committed if the offence in question is an extraditable offence and the accused person is located in Switzerland but not extradited.

If the offence was committed abroad, the main evidence often needs to be obtained through international mutual legal assistance, which might be a lengthy process depending on the foreign authorities involved. Swiss authorities are thus usually selective in the prosecution of such offences. Instead, they try to prosecute foreign offences indirectly by targeting the accused persons for related offences committed in Switzerland (in particular, money laundering).

12 Describe the principal challenges that arise in your country in cross-border investigations, and explain whether and how such challenges depend on the other countries involved.

The typical issue in cross-border investigations is the transfer of personal data from Switzerland to foreign courts, regulators or enforcement authorities. Several legal provisions restrict the disclosure of personal data to foreign authorities, inter alia, the prohibition of unlawful activities on behalf of a foreign state (Swiss Criminal Code, Article 271), Swiss banking secrecy (Federal Banking Act, Article 47), other financial professional secrecies (Financial Institutions Act, Article 69; Financial Market Infrastructure Act, Article 147), provisions on the protection of manufacturing and trade secrets (Swiss Criminal Code, Articles 162 and 273), Swiss data protection and labour laws. Additionally, contractual secrecy obligations or confidentiality agreements may prevent the disclosure of data.

Article 271 of the Swiss Criminal Code prohibits and sanctions activities on behalf of a foreign state on Swiss territory unless the competent administrative body has granted an authorisation. In general, Switzerland-based corporations and individuals are thus required to obtain authorisation if they intend to disclose personal data to foreign authorities.

Pursuant to the financial professional secrecies, it is an offence to disclose confidential information about current or former clients of a Swiss bank, financial institution or financial market infrastructure. A breach of financial professional secrecies may not only trigger criminal sanctions but also administrative measures or proceedings and civil liability.

The Federal Data Protection Act (FDPA) requires, inter alia, that personal data only be processed in compliance with specific processing rules (e.g., rules of lawfulness, good faith, proportionality and transparency). According to Article 6, paragraph 1 of the FDPA, personal data may be disclosed abroad if the Swiss Federal Council has determined that the legislation of the relevant state or international body guarantees an adequate level of data protection. In the absence of such a decision by the Swiss Federal Council, personal data may be disclosed abroad only if appropriate protection is guaranteed by the measures listed under Article 16, paragraph 2 of the FDPA or an exception in accordance with Article 17 of the FDPA is available.

When foreign authorities use the available channels of mutual administrative or legal assistance to obtain documents and information, the aforementioned provisions do not apply.

13 Does double jeopardy, or a similar concept, apply to prevent a corporation from facing criminal exposure in your country after it resolves charges on the same core set of facts in another? Is there anything analogous in your jurisdiction to the ‘anti-piling on’ policy as exists in the United States (the Policy on Coordination of Corporate Resolution Penalties) to prevent multiple authorities seeking to penalise companies for the same conduct?

Switzerland applies the ne bis in idem doctrine, which is essentially the equivalent of the double jeopardy concept in common law jurisdictions. Based on this doctrine, no person who has been convicted or acquitted in Switzerland in a final legally binding judgment may be prosecuted again for the same offence. This also applies to corporations. Owing to the territoriality principle, a foreign prosecution or conviction has, in general, no effect on the jurisdiction of Swiss criminal authorities regarding offences committed in Switzerland. Under certain conditions, however, the Swiss criminal authorities must observe a foreign verdict of acquittal or reduce a sentence if it has already been partly served abroad.

If an investigation pursues the same subject matter, multiple government authorities may simultaneously investigate the same corporation. If appropriate, they usually coordinate their actions and may consult each other to ensure that their investigations do not interfere with each other or duplicate the same enquiries. The ne bis in idem doctrine prohibits multiple Swiss authorities from penalising companies for the same conduct. However, in general, the doctrine has no effect on civil or regulatory proceedings. Therefore, regulatory authorities may order additional measures against a corporation even if that corporation has already been convicted or acquitted in criminal proceedings.

14 Are ‘global’ settlements common in your country? What are the practical considerations?

Global settlements are not frequent in Switzerland. However, the Swiss authorities do cooperate with foreign authorities based on applicable laws, specifically in connection with multi-jurisdictional investigations.

15 What bearing do the decisions of foreign authorities have on an investigation of the same matter in your country?

In general, Swiss authorities conduct their investigations independently. However, investigations or decisions of foreign authorities may cause the Swiss authorities to initiate an investigation.

Economic sanctions enforcement

16 Describe your country’s sanctions programme and any recent sanctions imposed by your jurisdiction.

Switzerland’s sanctions programme authorises the Federal Council to impose non-military measures to implement sanctions that have been imposed by the United Nations, the Organisation for Economic Co-operation and Development or by Switzerland’s most significant trade partners (e.g., the European Union) for the enforcement of international law, in particular human rights matters.

Possible sanctions are direct or indirect restrictions on transactions involving goods and services, payment and capital transfers; the movement of persons; scientific, technological and cultural exchange; prohibitions; licensing and reporting obligations; and other restrictions of rights.

On 28 February 2022, the Federal Council announced the adoption of the European Union’s sanctions against Russia. Sanctions under the Ordinance on Measures connected with the Situation in Ukraine include, among other things, travel sanctions, a ban on the import, export, sale, delivery, transit and transportation of certain goods, financial measures such as the freezing of assets and economic resources, and reporting obligations concerning blocked assets. Although Switzerland does not automatically adopt each further EU sanctions package against Russia and Belarus, the Federal Council has so far been relatively consistently in revising the Swiss sanctions regime to substantially reflect additional EU sanctions packages enacted in the meantime.

17 What is your country’s approach to sanctions enforcement? Has there been an increase in sanctions enforcement activity in recent years, for example?

The State Secretariat for Economic Affairs (SECO) is the main authority with responsibility for monitoring and implementing sanctions. An intentional breach of sanctions may result in a fine of up to 540,000 Swiss francs or imprisonment for up to five years. Merely negligent breaches of Swiss sanctions are subject to a fine of up to 100,000 Swiss francs.

SECO does not publish information about its sanctions enforcement activity. However, the newly adopted financial sanctions regarding the situation in Ukraine prohibit, among other things, the direct or indirect provision of any economic resources to persons or institutions on the sanctions list. We have noticed an increase in enforcement activity regarding sanctions imposed in response to the situation in Ukraine.

18 Do the authorities responsible for sanctions compliance and enforcement in your country cooperate with their counterparts in other countries for the purposes of enforcement?

The Swiss authorities cooperate with their foreign counterparts provided that cooperation is necessary for the implementation of the imposed sanctions regime, the foreign authorities are bound by official secrecy or a corresponding duty of secrecy, and they guarantee the prevention of industrial espionage within the scope of their activities.

19 Has your country enacted any blocking legislation in relation to the sanctions measures of third countries? Describe how such legislation operates.

Switzerland does not have restrictions in place that prohibit adherence to other jurisdictions’ sanctions or embargoes. However, applicable blocking statutes, secrecy and data protection regulations may restrict compliance with foreign reporting obligations relating to sanctions imposed by other countries or supranational organisations.

20 To the extent that your country has enacted any sanctions blocking legislation, how is compliance enforced by local authorities in practice?

Not applicable.

Before an internal investigation

21 How do allegations of misconduct most often come to light in companies in your country?

There are various ways in which allegations of misconduct at a company become known, including from whistleblowers, anti-money laundering procedures, internal and external audit, and media coverage, among other things.

In general, the Swiss authorities initiate their investigations based on their own observations, criminal or other complaints filed by victims or third parties, reports by whistleblowers, media reports and reports from other authorities, including foreign authorities. The criminal authorities and the Swiss Financial Market Supervisory Authority are required to report all offences they become aware of in their official capacity. Investigations are also often triggered by suspicious activity and transaction reports filed with the Money Laundering Reporting Office of Switzerland.

Information gathering

22 Does your country have a data protection regime?

The basis of the data protection regime in Switzerland is the Federal Data Protection Act (FDPA), which has been subject to a complete revision that entered into force on 1 September 2023. The FDPA is applicable when personal data is processed in Switzerland by a federal authority or a private person (individual or entity). It is also applicable to the processing of personal data that has an effect in Switzerland, even if the processing is initiated abroad.

Personal data is defined as all information relating to an identified or identifiable individual. As a result of the above-mentioned revision, data relating to legal entities is no longer protected by the FDPA. Legal entities, however, are still subject to the general protection of personality rights.

The FDPA requires, inter alia, that personal data only be processed lawfully, in good faith, in a proportionate manner and transparently. Any data processing that does not comply with these processing rules constitutes a breach of the data subject’s personal rights. Such breaches are unlawful unless they are justified by the consent of the data subject, by an overriding private or public interest, or by a statutory provision of Swiss law. With the revision of the FDPA, these core principles have not changed. However, new or broader duties have been introduced (e.g., documentation, information and notification duties).

In addition, there are various additional statutory provisions that regulate or prohibit the process or disclosure of data (e.g., Swiss bank secrecy, professional secrecy and employment law).

23 To the extent not dealt with above at question 9, how is the data protection regime enforced?

The Federal Data Protection and Information Commissioner (FDPIC) is the relevant authority if federal authorities, individuals or entities process personal data either in Switzerland or with an effect in Switzerland.

With the revision of the FDPA, the FDPIC has been granted more extensive enforcement powers. It is now entitled to conduct investigations ex officio or on receipt of a complaint, to collect evidence and to issue orders. If data protection regulations are violated, the FDPIC may order that the processing be adjusted, suspended or terminated in full or in part and that the personal data be fully or partially deleted or destroyed. In addition, the FDPIC may defer or prohibit the disclosure of personal data abroad. However, the FDPIC is still not able to impose fines or sanctions.

Individuals who wilfully fail to comply with their obligations to the FDPIC regarding information or cooperation may be fined up to 250,000 Swiss francs. Corporations may also be fined instead of the responsible individual if a penalty of no more than 50,000 Swiss francs will be imposed and the efforts to identify the responsible individual would be disproportionate compared with the fine.

24 Are there any data protection issues that cause particular concern in internal investigations in your country?

Internal investigations must be set up in compliance with data protection laws. In practice, the most important data protection issue in connection with internal investigations is the provision that personal data may only be transferred to a country with inadequate data protection regulation if, inter alia, it is justified by a statutory provision of Swiss law, the consent of the data subject, or the disclosure is necessary to safeguard an overriding public interest (an overriding private interest does not suffice), or for the establishment, exercise or enforcement of legal claims before a court or another competent foreign authority. However, Swiss courts only exceptionally acknowledge the existence of an overriding public interest. With the revision of the FDPA, the Swiss Federal Council has published a list of countries with adequate data protection regimes.

25 Does your country regulate or otherwise restrict the interception of employees’ communications? What are its features and how is the regime enforced?

Based on data protection and labour laws, employees must be informed about the method, scope, period and purpose of any visual, audio or electronic monitoring. Consequently, any monitoring that has not been announced in advance is permissible only in exceptional cases (e.g., investigation of suspected criminal activities or serious violation of internal rules and risk of collusion).

In addition, there are several criminal provisions that sanction the breach of privacy.

Dawn raids and search warrants

26 Are search warrants or dawn raids on companies a feature of law enforcement in your country? Describe any legal limitations on authorities executing search warrants or dawn raids, and what redress a company has if those limits are exceeded.

In connection with investigations, dawn raids and search warrants are common tools of the authorities.

In general, houses, dwellings and other rooms not publicly accessible may be searched only with the consent of the proprietor unless a search warrant has been issued. Searches not covered by a search warrant are in general unlawful and evidence obtained in connection with an illegal search is inadmissible unless it is essential to secure a conviction for a serious offence. Other evidence gained from that tainted evidence is in general also not admissible.

Search warrants can be challenged before the competent authorities or courts based on both the legitimacy and the scope of the search.

27 How can privileged material be lawfully protected from seizure during a dawn raid or in response to a search warrant in your country?

A request may be made to seal privileged material, but this must be done without delay. The authorities must not search the sealed material, but they may file a request before the competent courts for the removal of the seal. The court will then review whether the claim of privilege is valid. The court’s decision may be challenged before the Federal Supreme Court.

28 Under what circumstances may an individual’s testimony be compelled in your country? What consequences flow from such compelled testimony? Are there any privileges that would prevent an individual or company from providing testimony?

Every individual from the age of 15 and with sufficient mental capacity is compelled to testify before the criminal prosecution authorities and criminal courts unless they have the right to refuse testimony because of a personal relationship (e.g., marriage or kinship), for personal protection (self-incrimination) or to protect closely related persons (e.g., spouses, parents, children or siblings), or owing to official secrecy or professional confidentiality (which applies to, for example, lawyers, members of the clergy and physicians).

Whistleblowing and employee rights

29 Describe the whistleblowing framework in your country. What financial incentive schemes exist for whistleblowers? What legal protections are in place for whistleblowers?

There is no specific whistleblowing framework in existence in Switzerland; in particular, there is no specific protection for whistleblowers. A proposal by the Federal Council to improve the protection for whistleblowers was rejected by the National Council in 2019. Accordingly, Switzerland does not operate formal financial incentive schemes for whistleblowers. In July 2022, the Organisation for Economic Co-operation and Development issued an statement asking Switzerland to urgently take concrete steps to adopt key legislative reforms with regard to the protection of whistleblowers.

In recent years, however, many corporations have introduced whistleblower frameworks that allow employees and third parties to file complaints anonymously.

Based on Swiss labour law, employees are bound by a duty of loyalty towards their employers and must not report potential misconduct publicly or to the authorities. Against this background, Swiss courts have developed a formula pursuant to which dismissal in connection with whistleblowing is not regarded as abusive if the employee did not first report the offence or misconduct internally but if the management did not take appropriate remedial measures. Under Swiss labour law, even an abusive termination is valid and entitles the dismissed employee only to financial compensation of up to six months’ salary.

30 What rights does local employment law confer on employees whose conduct is within the scope of an investigation? Is there any distinction between officers and directors of the company for these purposes?

Under Swiss labour law, all employees have a general duty of loyalty towards their employers and an obligation to account for all their activities and work-product during their period of employment. Based on these provisions, it is recognised that employees must assist with internal investigations conducted by the employer, including providing relevant documents and information, and participating in interviews. In return, employers have the obligation to safeguard the personal rights of their employees. If employees might be subject to criminal prosecution, it is in general advisable to alert them to the right not to incriminate themselves and to allow them not to respond to specific questions. However, there is no uniform opinion or case law regarding this matter. The same applies to the question of whether employees are entitled to have legal representation or a trusted adviser present during interviews.

In general, employees with high-level positions have an increased duty of loyalty towards their employers compared to other employees and thus have increased cooperation obligations in connection with internal investigations.

31 Do employees’ rights under local employment law differ if a person is deemed to have engaged in misconduct? Are there disciplinary or other steps that a company must take when an employee is implicated or suspected of misconduct, such as suspension or in relation to compensation?

Under Swiss labour law, an ordinary dismissal is possible at any time without specific grounds, whereas an immediate dismissal requires a material ground. Based on case law, the employer is required to investigate allegations of potential misconduct before dismissing the employee. Otherwise, the dismissal might be considered as abusive and thus entitle the employee to financial compensation.

In practice, corporations tend to suspend employees from work while an investigation regarding their potential misconduct is being conducted.

32 Can an employee be dismissed for refusing to participate in an internal investigation?

An unwarranted refusal to cooperate with an employer’s internal investigation constitutes a breach of contractual duties and may entitle the employer to take disciplinary action against the employee who is not cooperating, including, in serious cases, dismissal.

Commencing an internal investigation

33 Is it common practice in your country to prepare a document setting out terms of reference or investigatory scope before commencing an internal investigation? What issues would it cover?

It is common practice in Switzerland to prepare an investigation plan prior to the launch of an internal investigation. The plan should define in particular the subject matter (i.e., the factual and legal topics to be covered) and the scope of the investigation. Additionally, investigation plans often define investigatory steps, time frames, resources and responsibilities as well as status and final reporting.

34 If an issue comes to light prior to the authorities in your country becoming aware or engaged, what internal steps should a company take? Are there internal steps that a company is legally or ethically required to take?

There is no explicit statutory obligation to conduct an internal investigation. However, several provisions in corporate, labour, regulatory and criminal law may require a corporation to investigate potential misconduct to avoid liability and sanctions, or to be able to cooperate with the authorities.

Based on their duty of loyalty, employees are in general obliged to report to their superiors if they become aware of potential misconduct within the company. Management is required to inform the board of directors of any misconduct with potential material effects on the corporation.

35 What internal steps should a company in your country take if it receives a notice or subpoena from a law enforcement authority seeking the production or preservation of documents or data?

Under Swiss criminal law, it is illegal to interfere with the course of justice, specifically to tamper with or destroy evidence. In addition, corporations have statutory obligations to preserve documents for certain periods (in general for 10 years). Therefore, corporations are required to have the appropriate systems and directives in place and to provide all employees with clear instructions to prevent material from being destroyed that is subject to an order from a law enforcement authority.

Under the Swiss money laundering regime, receipt of a subpoena triggers due diligence obligations that may result in filing a suspicious activity report with Switzerland’s Money Laundering Reporting Office. However, this obligation is imposed only on persons and entities (mostly financial intermediaries) that are subject to the Swiss Anti-Money Laundering Act.

36 At what point must a company in your country publicly disclose the existence of an internal investigation or contact from a law enforcement authority?

There is no general obligation to inform the public about an internal investigation or an enquiry from a law enforcement authority. An exception may exist for publicly listed companies that are subject to ad hoc publicity rules (i.e., the requirement to disclose information that could have a substantial effect on the market price).

37 How are internal investigations viewed by local enforcement bodies in your country?

In general, internal investigations are welcomed, or at least tolerated, by Swiss enforcement authorities as long as they do not negatively affect their own investigations. Internal investigations are often a practical necessity for corporations to be in a position to respond to requests from criminal or regulatory authorities.

Attorney–client privilege

38 Can the attorney–client privilege be claimed over any aspects of internal investigations in your country? What steps should a company take in your country to protect the privilege or confidentiality of an internal investigation?

In general, internal investigations conducted by Swiss attorneys are subject to the attorney–client privilege. In two decisions, however, the Federal Supreme Court called into question the generality of that rule. In both cases, the clients were financial institutions and the authorities claimed that the invocation of the attorney–client privilege to protect an investigation report and its annexes would constitute a circumvention of statutory documentation obligations under the anti-money laundering legislation. Both decisions have been heavily criticised in the legal community.

Best practice to uphold the attorney–client privilege in connection with internal investigations includes a clear definition of the scope of the investigation and a clear separation between fact finding and legal analysis and advice. If the client is subject to anti-money laundering duties, potential documentation obligations should either be part of a separate investigation stream and report, or explicitly excluded from the scope of the investigation conducted by external counsel.

39 Set out the key principles or elements of the attorney–client privilege in your country as it relates to corporations. Who is the holder of the privilege? Are there any differences when the client is an individual?

With few exceptions, all communications between a client and an attorney and all work-product are subject to the attorney–client privilege, provided that they relate to the attorney’s typical professional activities (i.e., advising and representing in legal matters). The protection applies irrespective of the location of the correspondence and documents, which is to say that the material does not need to reside with the attorney to be privileged.

In criminal proceedings, privilege cannot be invoked if the attorney is charged in the same context.

Pre-existing documents and materials created outside the scope of an attorney’s engagement are not subject to the attorney–client privilege.

Both the client and the attorney are deemed holders of the attorney–client privilege. This means that the client can release the attorney from the confidentiality obligation, but the attorney may still refuse to disclose privileged information despite the release.

The attorney–client privilege can be invoked by both individual and corporate clients.

40 Does the attorney–client privilege apply equally to in-house and external counsel in your country?

The attorney–client privilege currently applies only to external counsel. Consequently, communications between employees of a corporation and in-house counsel are not privileged in Switzerland. In connection with the revision of the Civil Procedure Code, an attorney–client privilege will be introduced for in-house counsel under certain conditions in civil proceedings. This revision is expected to come into force at the beginning of 2025.

41 Does the attorney–client privilege apply equally to advice sought from foreign lawyers in relation to investigations in your country?

According to Swiss procedural laws, the attorney–client privilege applies, in general, only to Swiss attorneys and lawyers from EU Member States, countries within the European Free Trade Association or the United Kingdom who are authorised to practise in Switzerland. If the client is a target of a criminal investigation, the attorney–client privilege applies to any member of the defence team. The Swiss Federal Supreme Court confirmed this interpretation of the law in a decision rendered in 2021.

42 To what extent is waiver of the attorney–client privilege regarded as a cooperative step in your country? Are there any contexts where privilege waiver is mandatory or required?

Swiss authorities cannot require a client or an attorney to waive the attorney–client privilege. If there is a disagreement as to whether specific material is privileged, the competent courts will decide whether the authorities may use the documents. If a corporation or individual under investigation seeks leniency but at the same time heavily relies on the attorney–client privilege, this approach might be considered as inconsistent and thus as a lack of cooperation.

43 Does the concept of limited waiver of privilege exist as a concept in your jurisdiction? What is its scope?

As a general rule, information protected by attorney–client privilege may be disclosed to third parties, including Swiss authorities, without waiving privilege. However, the disclosure may lead to factual loss of privilege if the proceedings are public (e.g., court hearings) or the authority is required to share the information with other Swiss or foreign authorities (e.g., mutual administrative or legal assistance). Therefore, it should be decided carefully in each case whether privileged information will be disclosed to Swiss authorities.

44 If privilege has been waived on a limited basis in another country, can privilege be maintained in your own country?

In general, the attorney–client privilege waived on a limited basis in another country can be maintained in Switzerland. However, the foreign-based recipient of the privileged information may share the information with the Swiss authorities without informing the privilege holder.

45 Do common interest privileges exist as concepts in your country? What are the requirements and scope?

The concept of common interest privileges does not exist in Switzerland. Corporations and individuals represented by separate attorneys may share information and work-product with each other without waiving the attorney–client privilege under Swiss law.

46 Can privilege be claimed over the assistance given by third parties to lawyers?

The attorney–client privilege also applies to third parties assisting a Swiss attorney (or an attorney authorised to practise in Switzerland) if the third parties have been engaged by the attorney and the assistance relates to the attorney’s typical professional activity (e.g., forensic analysis for advising and representing a client in administrative, civil or criminal proceedings).

Witness interviews

47 Does your country permit the interviewing of witnesses as part of an internal investigation?

There are no specific laws on how to conduct an internal investigation. In general, interviewing witnesses is permitted in Switzerland but interviews may be recorded by a camera or audio device only if all participants agree to a recording being made. Violation of this principle constitutes a criminal offence.

According to case law, Swiss lawyers may perform interviews only if there is a factual need for the interview, the interview is in the interest of the client, the lawyer avoids any influence on the interviewee and the interview does not impair investigations by the authorities. These requirements are usually met when a lawyer conducts merely a fact-finding interview in connection with an internal investigation.

If the interview is performed in connection with a foreign investigation, or proceedings or information obtained through the interview are to be shared with foreign authorities or courts, the boundaries of the prohibition of unlawful activities on behalf of a foreign state (Swiss Criminal Code, Article 271) must be observed.

48 Can a company claim the attorney–client privilege over internal witness interviews or attorney reports?

Until 2018, the commonly held view was that work-product created by external counsel in connection with internal investigations, including witness interviews or attorney reports, was subject to the attorney–client privilege. This view has been challenged based on two decisions of the Federal Supreme Court in 2018 and 2019.

49 When conducting a witness interview of an employee in your country, what legal or ethical requirements or guidance must be adhered to? Are there different requirements when interviewing third parties?

At the beginning of an interview, the interviewee should be informed about the background of the investigation, the purpose of the interview, any allegations made against the interviewee, and the intended use of the information provided during the interview (whether the information may be shared with authorities). If external lawyers are present at an interview, it should be emphasised that they represent the interests of the corporation and not those of the interviewee.

The questioning should be fair, objective and based on civility and respect towards the interviewee. If it becomes apparent during the interview that an interviewee may expose himself or herself to criminal prosecution, the interviewee should be informed about the right to refuse to testify and the right to seek legal representation. If the authorities are already investigating the matter, it might be advisable to liaise with them to clarify whether they have any objections to the interview.

In general, the aforementioned best practices apply to both employees and third parties. The main difference, however, is that third parties are not under an obligation to assist with an internal investigation or to participate in an interview.

The Federal Supreme Court has concluded that interview notes or minutes are admissible evidence in criminal proceedings even if no Miranda warnings were given. However, interview notes or minutes need to meet certain criteria (e.g., bearing the signature of the interviewee and confirming the accuracy of the content or statements) to qualify as documentary evidence and not as mere party allegations.

50 How is an internal interview typically conducted in your country? Are documents put to the witness? May or must employees in your country have their own legal representation at the interview?

The structure of an internal interview will depend on the investigation and the person to be interviewed. In general, two people typically lead the interview. If the interview is conducted by external counsel, a member of the human resources or legal and compliance department is often present. At the beginning of an interview, the interviewee should be informed about the background of the investigation, the purpose of the interview, any allegations made against the interviewee, and the intended use of the information provided during the interview. Documents will be presented to the interviewee if it is necessary or helpful for the line of questioning.

Whether or not an interviewee has a right to legal representation has not been established by the courts to date. In practice, whether a legal representative for the employee is present at the interview will depend on the allegations raised.

Reporting to the authorities

51 Are there circumstances under which reporting misconduct to law enforcement authorities is mandatory in your country?

There is no general statutory obligation to report potential offences or misconduct to the authorities in Switzerland.

In the financial sector, there are two main reporting obligations. First, supervised entities and individuals must inform the Financial Market Supervisory Authority immediately about any incident that is of material relevance for the supervision, including potential offences or misconduct within their activities. Second, Swiss financial intermediaries and other persons falling within the scope of Anti-Money Laundering Act are required to report cases of suspected money laundering to the Money Laundering Reporting Office of Switzerland, based on applicable Swiss anti-money laundering provisions.

Finally, the controller of personal data must notify the Federal Data Protection and Information Commissioner as soon as possible of any data security breach that is likely to result in a high risk to the personality or the fundamental rights of the data subject.

52 In what circumstances might you advise a company to self-report to law enforcement even if it has no legal obligation to do so? In what circumstances would that advice to self-report extend to countries beyond your country?

Among the many factors to determine whether to self-report are the likelihood that potential misconduct will become public or otherwise known to the competent authorities and the availability of a leniency regime or cooperation bonus. The decision to self-report should be made from a multinational perspective if the potential misconduct relates to more than one jurisdiction.

53 What are the practical steps needed to self-report to law enforcement in your country?

Before approaching the authorities, a company should have a sufficient understanding of the relevant facts of the misconduct it plans to report. This often requires a preliminary internal investigation. In practice, it is often advisable to contact the authorities informally through external counsel.

Responding to the authorities

54 In practice, how does a company in your country respond to a notice or subpoena from a law enforcement authority? Is it possible to enter into dialogue with the authorities to address their concerns before or even after charges are brought? How?

Corporations are required to comply with notices and subpoenas unless they challenge them before the competent agencies or courts. There is no obligation to liaise with the law enforcement authorities before responding to notices or subpoenas. In practice, it is often advisable to enter into a dialogue with the law enforcement authorities to get a better understanding of the background, the scope and the next steps of the investigation. A dialogue can also be helpful to clarify potential misunderstandings or ambiguities. Under certain circumstances, the authorities may be willing to amend their notices or subpoenas (e.g., when it would be practically or technically impossible or far too burdensome to provide the authorities with the information or documents requested).

55 Are ongoing authority investigations subject to challenge before the courts?

In criminal law, the initiation of investigations and preliminary proceedings are not subject to challenge before the courts unless the accused person claims that it would constitute a violation of the ne bis in idem doctrine (an equivalent of the double jeopardy concept in common law jurisdictions). In practice, the initiation of administrative or regulatory investigations cannot be challenged either.

Once the investigations or preliminary proceedings are under way, procedural orders, compulsory measures and decisions can usually be challenged before the competent agencies or courts.

56 In the event that authorities in your country and one or more other countries issue separate notices or subpoenas regarding the same facts or allegations, how should the company approach this?

Swiss and foreign authorities increasingly tend to coordinate their actions in multi-jurisdictional investigations.

Owing to several Swiss legal provisions, corporations and individuals based in Switzerland are subject to several restrictions when cooperating with foreign authorities, in particular if the requested information and documents include personal data about employees, third parties and clients. Should a foreign authority issue a notice or subpoena, the company must carefully consider whether it can cooperate, can provide only redacted information, needs to obtain an authorisation from the Swiss authorities or should inform the foreign authority that they have to use the channels of mutual administrative or legal assistance.

57 If a notice or subpoena from the authorities in your country seeks production of material relating to a particular matter that crosses borders, must the company search for and produce material in other countries to satisfy the request? What are the difficulties in that regard?

In general, the Swiss authorities do not seek production of material that is only available outside Switzerland. In such cases, the Swiss authorities will instead use the available channels of mutual administrative or legal assistance to obtain the material.

58 Does law enforcement in your country routinely share information or investigative materials with law enforcement in other countries? What framework is in place in your country for cooperation with foreign authorities?

Switzerland cooperates with foreign authorities based on mutual administrative or legal assistance and police cooperation through Interpol and Europol.

Whether or not assistance is granted depends on whether the applicable requirements are met. In addition, the persons concerned may challenge the decisions of the Swiss authorities to grant assistance before the competent courts.

The sharing of information with Interpol and Europol is in general not subject to challenge before the courts. However, persons may request that information that relates to them is amended or deleted.

59 Do law enforcement authorities in your country have any confidentiality obligations in relation to information received during an investigation or onward disclosure and use of that information by third parties?

Swiss authorities and their staff are bound by official secrecy and may only disclose non-public information they become aware of during the exercise of their official duties, provided the law allows them to do so.

60 How would you advise a company that has received a request from a law enforcement authority in your country seeking documents from another country, where production would violate the laws of that other country?

If a Swiss authority issues a notice or subpoena that would violate foreign law, the company may challenge the order before the competent authority or court. However, Swiss authorities will usually use the available channels of mutual administrative or legal assistance.

61 Does your country have secrecy or blocking statutes? What related issues arise from compliance with a notice or subpoena?

Switzerland has several secrecy or blocking statutes that restrict cooperation with foreign authorities. Article 271 of the Swiss Criminal Code prohibits and sanctions activities on behalf of a foreign state on Swiss territory unless the competent administrative body has granted an authorisation. In general, Switzerland-based corporations and individuals are thus required to obtain an authorisation from the competent authority if they intend to disclose personal data to foreign authorities based on a notice or subpoena from a foreign authority. Typically, authorisations will not be granted if the channels of mutual administrative or legal assistance are available.

62 What are the risks in voluntary production versus compelled production of material to authorities in your country? Is this material discoverable by third parties? Is there any confidentiality attached to productions to law enforcement in your country?

In general, there are no legal risks involved if the production is based on an order or subpoena issued by the Swiss authorities.

In respect of voluntary productions, however, corporations and individuals cooperating with Swiss authorities must be careful not to violate applicable data protection, labour and secrecy laws (in particular, business secrecy and bank secrecy). To reduce their exposure to risk, they can either obtain consent from the data subjects and secrecy owners or redact the protected information.

Swiss authorities and their staff are bound by official secrecy and may only disclose non-public information they become aware of during the exercise of their official duties, provided the law allows them to do so. Once a case is before a court, however, the proceedings and the oral passing of judgments are, in general, open to the public.

Prosecution and penalties

63 What types of penalties may companies or their directors, officers or employees face for misconduct in your country?

In criminal proceedings, a corporation may face a fine of up to 5 million Swiss francs. In addition, the court may order the publication of the judgment and the forfeiture or confiscation of assets.

Depending on the offence committed, directors, officers or employees may be punished with a fine (in general, up to 10,000 Swiss francs), a monetary penalty (in general, up to 540,000 Swiss francs) or imprisonment (in general, up to 20 years).

In enforcement proceedings, the Financial Market Supervisory Authority (FINMA) has a wide set of enforcement tools. Inter alia, FINMA may confiscate profits generated or losses avoided through serious violations of financial market laws and regulations by supervised entities or individuals in senior functions, prohibit individuals from exercising a professional activity, withdraw licences and order the liquidation of financial institutions in the event of serious violations. In addition, individuals and entities that do not comply with a FINMA order may be fined up to 100,000 Swiss francs. Finally, individuals who provide FINMA with false information may face a custodial sentence of up to three years or a monetary penalty.

Some supervisory authorities (e.g., the Competition Commission in antitrust and the Federal Office of Communications in telecommunications matters) may impose fines of up to 10 per cent of the average turnover of the corporation in Switzerland during the previous three years.

64 Where there is a risk of a corporate’s suspension, debarment or other restrictions on continuing business in your country, what options or restrictions apply to a corporate wanting to settle in another country?

Debarment from government contracts is currently not a specific sanction under Swiss law. However, if a settlement with a foreign authority may have a relevant effect on the corporation’s liquidity, stability, business or reputation, it is advisable to liaise with the competent supervisory authority prior to the settlement.

65 What do the authorities in your country take into account when fixing penalties?

Relevant factors for determining the fines for corporations in connection with any wrongdoing are the seriousness and the number of the offences committed in their commercial activities, the damage caused by the offences, the severity of the organisational inadequacies, the economic ability of the corporation to bear the fine, remedial measures taken (e.g., restructuring measures or reparation payments), the quality of the corporation’s cooperation with the authorities during the investigation and previous misconduct.

For individuals, the criminal authorities have to take a variety of aspects into account, including the culpability (i.e., damage caused, conduct and motives), previous conduct and the personal circumstances of the offender as well as potential mitigation factors (e.g., honourable motives, serious distress, dependency and remorse) and the effect that the sentence will have on the offender’s life.

Overall, we observe a tendency by criminal authorities to impose higher fines and monetary penalties as well as longer custodial sentences for business crimes.

Resolution and settlements short of trial

66 Are non-prosecution agreements or deferred prosecution agreements available in your jurisdiction for corporations?

Currently, neither deferred prosecution agreements (DPAs) nor non-prosecution agreements (NPAs) are available in Switzerland, either for corporations or individuals.

67 Does your jurisdiction provide for reporting restrictions or anonymity for corporates that have entered into non-prosecution agreements or deferred prosecution agreements until the conclusion of criminal proceedings in relation to connected individuals to ensure fairness in those proceedings?

No, since neither DPAs nor NPAs are currently available in Switzerland for either corporations or individuals.

68 Prior to any settlement with a law enforcement authority in your country, what considerations should companies be aware of?

According to Swiss case law, journalists are entitled to access settlements with prosecutors unless the access would be contrary to overriding public or private interests. Therefore, corporations should be prepared for media enquiries and coverage once they have reached a settlement. In addition, plaintiffs may use publicly available orders against a corporation to pursue their civil claims because most settlements include an implicit admission of guilt (e.g., payment of reparation or acceptance of the facts).

69 To what extent do law enforcement authorities in your country use external corporate compliance monitors as an enforcement tool?

Swiss criminal law currently does not provide external corporate compliance monitors as an enforcement tool.

However, the Financial Market Supervisory Authority (FINMA) may engage an independent and suitably qualified person as investigating agent, auditing agent, restructuring agent, crisis manager or liquidator. Investigating agents will be engaged in connection with enforcement proceedings and are responsible for investigating the facts in connection with potential misconduct or implementing supervisory measures ordered by FINMA. Auditing agents will conduct special audits of supervised individuals and entities, including with regard to remedial steps. Restructuring agents are mandated by FINMA to draw up restructuring plans. Crisis managers take over the management of the financial intermediary concerned, draw up proposals for dealing with the crisis, and implement them. Liquidators conduct liquidation when an intermediary has no licence or has lost its licence.

70 Are parallel private actions allowed? May private plaintiffs gain access to the authorities’ files?

In connection with criminal investigations and proceedings against corporations or their (former) employees, individuals or entities claiming damages regularly request participation as private plaintiffs. If they are admitted to participate in the criminal proceedings as private plaintiffs, they may have access to the case file, be present during hearings of parties and witnesses, ask questions of the parties and witnesses, submit requests for evidence, and file appeals against orders and the final judgment.

In administrative proceedings, however, specifically in enforcement proceedings conducted by FINMA, private plaintiffs are not parties to the proceedings and thus have no access to the case file and will not be informed about the outcome of the investigation and proceedings.

Publicity and reputational issues

71 Outline the law in your country surrounding publicity of criminal cases at the investigatory stage and once a case is before a court.

Swiss authorities and their staff are bound by official secrecy and may only disclose non-public information they become aware of during the exercise of their official duties, provided the law allows them to do so.

Investigations and pretrial proceedings conducted by the criminal authorities are not public. Therefore, the criminal authorities must treat as confidential any information gathered or received during the investigations and pretrial proceedings.

Once a case is before a court, the proceedings and the oral passing of judgments are, in general, open to the public.

FINMA does not usually inform the public about pending investigations. It only publishes information about specific proceedings when this is necessary to protect market participants, to correct wrong or misleading media reports or to maintain the reputation of the Swiss marketplace. If there is a serious violation of the law, FINMA may publish its final ruling and disclose personal data about individuals and entities.

The Competition Commission (COMCO) is required to issue an official press release when opening a formal investigation, stating the purpose of and parties to the investigation. COMCO may publish its decision but the publications must not reveal any business secrets. Corporations named in the decision receive the decision prior to publication and may ask COMCO to redact further information if this is necessary to protect business secrecy or personal privacy.

72 What steps do you take to manage corporate communications in your country? Is it common for companies to use a public relations firm to manage a corporate crisis in your country?

Communications strategies vary from company to company and will need to be assessed for each situation separately, considering various factors, such as the complexity and gravity of the issue or crisis. In complex or severe cases, it has become common to build a communications task force, including external counsel and communications experts, which provides guidance on the communications strategy.

73 How is publicity managed when there are ongoing related proceedings?

The communication strategy depends on the specific circumstances. In general, corporations tend not to comment on ongoing proceedings or only give very high-level comments.

Duty to the market

74 Is disclosure to the market in circumstances where a settlement has been agreed but not yet made public mandatory?

In general, there is no mandatory obligation to disclose to the market when a settlement has been reached. However, depending on the circumstances (e.g., the penalty amount or the effect on business), the conclusion of a settlement may lead to a disclosure obligation under the ad hoc publicity rules under which publicly listed companies have to disclose any information in their sphere of activity that could have a substantial effect on the market price.

Environmental, social and corporate governance (ESG)

75 Does your country regulate ESG matters?

Since January 2021, a gender representation regime applies to companies that exceed two of the following criteria in two successive years (see Swiss Code of Obligations, Article 734f): a balance sheet of 20 million francs, sales revenue of 40 million francs and 250 full-time positions on average annually. Unless male and female members make up at least 30 per cent of the board of directors and 20 per cent of the executive board, the companies must indicate (1) the reasons why the genders are not represented as required and (2) the measures being taken to increase the representation of the less represented gender. However, the obligation to report will begin five years after the law comes into force regarding the board of directors (i.e., from January 2026) and 10 years after the law comes into force regarding the executive board (i.e., from January 2031). At the moment, no sanctions are foreseen for violating this obligation.

In addition, two new regimes entered into force on 1 January 2022.

Non-financial reporting obligations

Non-financial reporting obligations on compliance with matters of corporate social responsibility (CSR) (Transparenz über nichtfinanzielle Belange), including, but not limited to, environmental and human rights standards will be included as an amendment to the Swiss Code of Obligations (the Non-Financial Reporting Obligations). Companies of public interest (i.e., public companies as well as banks, insurance companies and other supervised companies in the financial sector) that, with their affiliates in Switzerland and abroad, have (1) at least 500 full-time employees (on average in a year) and (2) either total assets of more than 20 million Swiss francs or revenues of more than 40 million Swiss francs, must report annually on non-financial matters in a stand-alone report. The report must contain information necessary to understand the group’s business development, performance and position, and the impact of its activity on environmental (including carbon dioxide emission targets), social, employee, human rights and anti-corruption matters. According to a non-exhaustive list, the report must include a description of:

  • the business model;
  • policies pursued (including due diligence applied);
  • measures taken and how they are assessed;
  • the main risks resulting from the group’s own operations and, where relevant and proportionate, from its business relationships, products or services; and
  • the main non-financial key performance indicators, in each case with respect to CSR matters.

Due diligence obligations

Certain due diligence obligations and transparency obligations (including special reporting obligations on supply chain tracing with regard to minerals and metals) in connection with conflict minerals and child labour is included in the amendment to the Swiss Code of Obligations (the Due Diligence Obligations) and is further detailed in the Ordinance on Due Diligence Obligations and Transparency in Connection With Conflict Minerals, Conflict Metals and Child Labour (referred to as the Due Diligence Ordinance). Under that regime, Swiss companies that (1) import or process a certain amount (the amount imported or processed by group companies to be added) of minerals or metals containing tin (5,000kg per year), tantalum (100,000kg per year), tungsten (250,000kg per year) or gold (in pure form, 100kg per year; as ores, 4 million kg per year) – even as secondary products – from conflict or high-risk areas (excluding recycled metals) or (2) offer products or services where there are reasonable grounds to suspect that child labour was involved, will be subject to certain due diligence obligations with respect to their supply chain (except small and medium-sized enterprises). The obligation under point (2) does not apply if products or services originate from low-risk countries, which will be presumed if the country of origin is one classified as ‘Basic’ in the Children’s Rights in the Workplace Index.

76 Do you expect to see any key regulatory or legislative changes emerge in the next year or so designed to address ESG matters?

In March 2022, the Swiss government published a draft ordinance that specifies climate-related reporting obligations. The ordinance was expected to come into force on 1 January 2023. The reporting obligations will apply to large Swiss companies and are part of general ESG reporting. A general ESG report will have to be issued for the first time in 2024 with respect to financial year 2023.

77 Has there been an increase in ESG-related litigation, investigations or enforcement activity in recent years in your country?

We expect increased activity in line with global trends, with some high-profile matters having been filed in Switzerland recently. The Financial Market Supervisory Authority has made ESG-related topics one of its strategic goals for 2021–2024.

Anticipated developments

78 Do you expect to see any key regulatory or legislative changes emerge in the next year or so designed to address corporate misconduct?

The biggest anticipated change will be brought about by the changes made to the Swiss Code of Obligations regarding non-financial reporting and due diligence obligations.


[1] Flavio Romerio and Claudio Bazzani are partners and Reto Ferrari-Visca is an associate at Homburger.

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