When does a business gift become a bribery problem?

Two regimes, one logic

Swiss criminal law addresses corruption in two settings. Bribery of public officials is the strict end: offering or granting an undue advantage to a Swiss official is criminal (Art. 322ter SCC), the same applies to foreign officials (Art. 322septies SCC), and even an advantage granted with no specific decision in return can be punishable as granting an advantage (Art. 322quinquies SCC). The law tolerates only socially customary advantages of minor value; beyond that, the safe assumption when dealing with any public authority is that gifts and invitations are off the table.

Private-sector bribery is also criminal (Art. 322octies SCC): an advantage granted to an employee or agent of a business partner to make them act against their principal's interests, say in awarding a contract. The threshold of tolerance is higher than for officials, because relationship-building among private businesses is legitimate, but the underlying logic is the same in both regimes: a gift becomes a bribe when it is aimed at buying a decision that should be made on the merits.

The factors that actually decide

There is no fixed franc amount at which a gift becomes illegal, and any policy pretending otherwise is a comfort blanket. What prosecutors, courts and compliance functions actually weigh is a cluster of factors, and they reinforce each other.

• Value and proportionality: a branded notebook and a lavish weekend are different conversations. The more the advantage exceeds courtesy, the harder it is to explain.
• Timing: the same dinner is harmless in a stable relationship and toxic in the middle of a tender or a pending permit decision.
• Transparency: advantages given openly, invoiced and booked correctly point to hospitality; anything channelled through private accounts, third parties or vague invoices points the other way.
• The recipient's role: a decision-maker on your file is not the same as a long-standing technical contact, and a public official is a category of their own.
• Pattern: one modest gift is a gesture; a stream of them directed at one person is cultivation.

Cash and cash equivalents are never defensible, in either regime. And note that gifts flow both ways: your own employees accepting advantages from suppliers raises the same issues in mirror image, on top of the duty of loyalty they already owe you (Art. 321a CO).

One more point deserves board attention. The company itself can be prosecuted where a bribery offence cannot be attributed to an individual because the organisation was deficient (Art. 102 SCC). That is what turns a gifts policy from etiquette into a control.

Policy hygiene is your best defence

Companies rarely get into trouble because one employee bought one dinner; they get into trouble because nobody had defined what was acceptable, so nobody noticed the drift. A short gifts-and-hospitality policy does most of the work: sensible approval routes for anything beyond token value, a register of gifts given and received, a near-zero rule for public officials, accurate booking, and a clear word on tenders. For business abroad, remember that foreign anti-corruption laws with extraterritorial reach may apply to Swiss companies on top of Swiss law.

What to do

Write the policy, keep it to two pages, train the people who face customers and authorities, and have escalation go somewhere real. When a specific invitation or gift feels like it needs a justification, that instinct is the answer. If you are unsure where the line runs in a concrete situation, we are glad to discuss it with you.