The legal treatment of money laundering has been evolving since the 1990s. The introduction of the Anti-Money Laundering Act (AMLA) in 1998 marked a major milestone. Since then, the implementing ordinances (AMLO, AMLO-FINMA) have been regularly amended.
In 2003, the Federal Court issued a landmark decision stating that an act of money laundering may give rise to civil liability towards the victim of the predicate offence. Thus, anyone who has illegally enriched himself is obviously liable for compensation, but anyone who agreed to launder the money is also liable for compensation, to the same extent, towards the victim. This obviously strengthens the position of the victim, who can seek liability not only from the principal perpetrator but also from the money launderer. Experience shows that the launderer may be a “deep pocket” and is sometimes more exposed to a claim for compensation than the perpetrator of the original offence.
Also in 2003, the federal legislature adopted the provision on corporate criminal liability, which specifically targets cases of money laundering. Thus, pursuant to Article 102 (2) of the Swiss Criminal Code (CC), a company may be criminally convicted if an act of money laundering, corruption or terrorist financing is committed within it, in the course of its commercial activities, and the company has not taken “all reasonable and necessary organisational measures to prevent such an offence”.
The conviction of the company therefore presupposes that a natural person within the company has committed an act of money laundering and that the company has not taken all reasonable and necessary organisational measures to prevent such laundering.
It is worth mentioning that the company may be prosecuted and convicted even if the individual who committed the act of money laundering is not prosecuted. On the other hand, if the individual’s actions cannot be classified as money laundering, this prevents the company from being convicted.
If the individual has indeed committed an act of money laundering, but the company had taken all reasonable and necessary organisational measures to prevent such an offence from occurring, the company will then escape any criminal conviction. Consequently, the question is important for management: What “reasonable and necessary” organisational measures must be implemented to protect the company from criminal conviction? As everyone knows, no one is immune to an unscrupulous employee. Given this uncertainty, what monitoring measures are expected?
To date, several criminal convictions of companies have been handed down by means of summary penalty orders and are the result of negotiations between the Public Prosecutor’s Office and the company. These decisions offer little legal substance as they merely formalise an agreement and are similar to a plea bargain, even though such an institution is unknown in our legal system. One recalls the emblematic case of a bank that agreed about ten years ago to pay compensation amounting to several tens of millions of francs in order to avoid lengthy proceedings and other complications.
With regard to money laundering, legal doctrine and case law (still limited) appear to agree that “reasonable and necessary organisational measures” correspond to the implementation of the anti-money laundering obligations applicable to the company.
Put simply, if the company has complied with the applicable anti-money laundering provisions (AMLA, AMLO, AMLO-FINMA, Swiss banks’ Code of Conduct with regard to the exercise of due diligence (CDB), etc.) it will in principle be considered to have taken reasonable and necessary organisational measures; it should therefore avoid criminal conviction.
Otherwise, if the company has violated such prudential obligations, it may be reproached for not having taken all reasonable and necessary measures.
That being said, for such a breach to result in the company’s criminal conviction, there must still be a causal link between the breach and the act of money laundering committed within the company.
Let us illustrate this point with a (fictitious) example. Suppose a bank has not correctly identified the beneficial owners of certain business relationships. Furthermore, it has been established that one of its employees deliberately helped a client to conceal funds of criminal origin and circumvent the bank’s systems. However, the bank’s failure to identify the beneficial owners of certain business relationships is not at issue here: the act of money laundering committed by the employee concerns a relationship for which the beneficial owner had been correctly identified. In such a case, the bank’s organisational shortcoming cannot be used as a basis for the criminal conviction of the company under Article 102 (2) CC for the act of money laundering committed within it. It cannot be considered that the bank failed to take all reasonable and necessary measures, since the alleged organisational deficiencies are unrelated to the employee’s act of money laundering. In the absence of other shortcomings, the company should escape any criminal sanctions. The employee, on the other hand, may of course be prosecuted and convicted.
As in any criminal proceedings, it is up to the prosecuting authority to investigate and establish the facts. In order to secure a conviction against the bank in our example, the Public Prosecutor’s Office would have to demonstrate that the money laundering would have been prevented if the bank had taken all reasonable and necessary organisational measures. It should be noted in this respect that the Public Prosecutor’s Office enjoys very broad investigative powers, granting it access to all internal company documentation, including emails sent or received by its employees.
In early 2025, the Federal Criminal Court rendered one of the first truly contradictory judgements, which resulted in the conviction of a company on the basis of Article 102 (2) CC. This case did not involve money laundering, but corruption. The company concerned was active in commodities trading. It was accused of failing to take the necessary measures within it to prevent illicit payments to an intermediary who ran a subsidiary of the Angolan National Petroleum Company. On the issue of corporate liability, the Federal Criminal Court considered that the organisational failures identified consisted mainly of the absence of internal group guidelines on the monitoring of the activities of the group’s intermediaries. Such regulations were necessary for two reasons. On the one hand, international standards on preventing and combating corruption expressly stipulated that remuneration paid to agents and other intermediaries must be appropriate and justifiable for services legitimately rendered and that companies must monitor the conduct of their agents and other intermediaries. On the other hand, the Code of Business Conduct of the group to which the company belonged highlighted a very high risk of liability for any act of corruption committed by its intermediaries; this Code of Business Conduct mentioned the need for the group and its employees to be aware of the destination and purpose of all funds used by an intermediary on behalf of the group; however, these general principles had not been implemented in this specific case.
When a company is convicted of a criminal offence, the penalty is a fine of up to CHF 5 million. Other measures may also be considered, such as the confiscation of illegally obtained gains or the ordering of a compensatory claim equivalent to those gains (to ensure that crime does not pay).
A criminal conviction also entails commercial repercussions due to reputational damage.
When the convicted company is a financial institution, it must generally bear, in addition, the administrative consequences under the auspices of FINMA.
The legal arsenal for combating money laundering is expanding and becoming increasingly complex every year. Article 102 CC forms part of this arsenal, complementing and reinforcing it. This provision also heightens the risks faced by financial institutions in the event that money laundering occurs within their organisation. Strict compliance with prudential anti-money laundering obligations substantially mitigates this risk.
In practice, financial institutions are not the only entities exposed to potential criminal liability under Article 102(2) CC. Such liability may arise in relation to money laundering, but also to corruption and terrorist financing. Thus, in addition to banks, various international economic actors may be affected, such as commodity traders or companies involved in public procurement. All these companies must take “all reasonable and necessary measures” to prevent money laundering, corruption and terrorist financing.
Frédérique Bensahel
Partner, Geneva
&
Julien Le Fort
Associate, Geneva
Members of FBT’s White-Collar Crime group
