The criminal liability chain and the punishability of the company

Allnews – May 2026
Jean-Marie Kiener & Théo Goetschin

In line with the adage societas delinquere non potest, Swiss criminal law long ignored companies. The introduction in 2003 of Article 102 of the Swiss Criminal Code (SCC) marked a turning point. Initially rarely applied, this provision has become a key link in the criminal risk chain.

Article 102 SCC allows a company to be held criminally liable where an offence committed within the company cannot be attributed to a specific individual due to inadequate organisation (paragraph 1), or where the company has failed to take all the reasonable organisational measures that are required in order to prevent certain offences, such as money laundering or certain forms of corruption, from occurring (paragraph 2). In the latter case, the company’s liability is primary and is in addition to that of the individual perpetrator.

For a financial institution, Article 102(2) SCC means in practice that an offence committed within it, in the course of its business activities, may give rise to its own criminal liability, alongside that of the individual perpetrator. However, this requires that the offence be listed in Article 102(2) SCC, that an organisational failure may be attributed to the company, and that there is an adequate causal link between this organisation failure and the offence. This last element essentially means that the company’s proper organisation would likely have prevented the commission of the offence.

The difficulty lies in the concept of ‘reasonable organisational measures’, which the law does not define. In practice, this means that a company must implement a prevention system tailored to the specific risks associated with its activities. For financial intermediaries, this notably implies ensuring that measures required by anti-money laundering regulations are effectively complied with.

Whilst the maximum fine of CHF 5 million provided for in Article 102 SCC may seem only moderately deterrent, the real financial risk lies elsewhere. Companies may indeed be ordered to return the benefits derived from the offence through a judgment ordering the payment of a compensatory claim, which is often far higher than the fine. The 2024 conviction of Glencore, which was ordered to pay a compensatory claim of USD 150 million in addition to a fine of CHF 2 million illustrates this well.

As regards the legal characterisation of Article 102(2) SCC, the Swiss Supreme Court clarified in a 2019 ruling that this provision does not create a separate offence but constitutes a rule of attribution¹. Criminal liability is thus attributed to the company in connection with the offence committed by the individual perpetrator on the grounds that the inadequacy of its organisation allowed the offence to occur. The analysis therefore focuses on the quality of the prevention system put in place. It is thus possible for a company to avoid a conviction by demonstrating that the required and appropriate measures were in place and effectively implemented, even if these ultimately proved ineffective in the face of circumvention.

After a hesitant start, criminal authorities have clearly intensified their enforcement efforts in recent years, particularly with regard to banks and players in the commodities market. In practice, the vast majority of proceedings result in a summary penalty order. In the absence of a mechanism comparable to the deferred prosecution agreements under Anglo-Saxon law, this approach allows for a conviction – often negotiated with prosecutors – to be secured with a certain degree of discretion.

This practice nevertheless has a drawback: the limited number of court decisions leaves uncertainties unresolved, both procedurally (notably the possibility of separating proceedings against the company from those targeting the principal perpetrator) and substantively (in particular, proof of the fulfilment of the constituent elements of the offence and the exact scope of organisational obligations). On this last point, however, the few decisions handed down by trial courts have provided some clarity. In matters of corruption, the Trafigura case demonstrated that companies must adapt their systems to the specific risks associated with their business. It also reiterated that a merely formal organisation is not sufficient and that organisational measures must be effective and concretely implemented².

For financial intermediaries, the message is clear: mere formal compliance is not enough. They must be able to demonstrate that risks have been properly identified, that appropriate measures have been implemented and that they are functioning effectively. It should also be borne in mind that these systems will be assessed retrospectively, sometimes against stricter standards.

Although Articles 305ter SCC and 37 AMLA are not included in the list set out in Article 102(2) SCC, we will see in the forthcoming articles in our series that they may also, under certain circumstances, lead to the criminal liability of the company.

¹ Federal Supreme Court Decision 146 IV 68 of 12 December 2019.
² Judgment of the Federal Criminal Court SK.2023.49 of 31 January 2025.

Jean-Marie Kiener
Counsel, Genève
&
Théo Goetschin
Counsel, Genève
White-Collar Crime (Head of practice)