Not every commission is worth taking

Not every commission is worth taking

My ex-husband is very reluctant to pay our children's pensions, even though I know he has the means to do so. He works in the construction industry and I have proof that he earns commission from the companies to which he entrusts work on behalf of his clients! Before going any further, I'm already wondering whether this practice is legal...

A, Acorn

You are right to wonder, because the facts you describe could, depending on the circumstances, constitute "private bribery". Previously provided for in the federal law on unfair competition, this offence has been prosecuted ex officio by the criminal authorities since 1 July 2016, on the basis of the new articles 322octies and 322novies of the Swiss Penal Code (CP). Such conduct is now punishable by a custodial sentence of up to three years.

Corruption always involves two parties: the briber and the bribed.

An "active" bribery offence will therefore be committed by anyone who offers, promises or grants an undue advantage to an employee, partner, agent or other auxiliary of another person in the private sector, whether this advantage is in favour of this person or a third party, in order to induce the performance or omission of an act related to his or her professional or commercial activity, the said act having to be contrary to his or her duties or dependent on his or her discretionary power.

Passive" bribery is therefore the mirror offence committed by a person who, as an employee, partner, agent or other auxiliary of another in the private sector, solicits, is promised or accepts - in his favour or in favour of a third party - an undue advantage for the performance or omission of an act as mentioned above.

In the construction sector that you mentioned, for example, the fact that an agent requests payment of a retrocession calculated on the basis of the amount of work awarded could constitute passive corruption. When choosing the companies responsible for building a property, the future owner's agent often has discretionary powers. By favouring a contractor who has 'paid' to be awarded the contract, the agent could give a company an unfair advantage.

However, for such behaviour to be punishable, the advantage granted must be undue. According to article 322 decies of the Swiss Criminal Code, undue advantages do not include those authorised by service regulations or agreed by contract, as well as advantages of minor importance that comply with social customs.

Each situation must therefore be examined carefully. Generally speaking, if the principle of the rebate is contractually agreed or if the end customer has been duly informed, it would appear to be legal a priori...