Is offering a Rolex to a foreign official considered bribery under Swiss law?
Series Truth or tale,
Episode 7:
The Swiss criminal code forbids the bribery of foreign officials. Swissinfo examines whether this rule would apply to top Swiss executives who brought valuable gifts on a recent visit to the White House.
A meeting in the Oval Office between American President Donald Trump and executives from Swiss companies has stirred a debate over corruption on both sides of the Atlantic.
It wasn’t simply that the businessmen, who aren’t official representatives of the Swiss government, arrived bearing presents – a Rolex desk clock and an engraved gold bar.
This article is in response to a question from a Swissinfo user, who asked if it is true that those who gave Donald Trump a clock could be prosecuted for bribery under Swiss law. If you have a question about Swiss trade or diplomacy that you’d like us to answer, get in touch by leaving a comment.
The exchange took place just days before the two countries announced they’d reached a deal that would cut tariffs imposed on Swiss manufacturers by the Trump administration from 39% to 15%, the same rate as the European Union.
This sequence of events raised eyebrows.
For Switzerland, progress on getting an agreement with the US, its second-biggest export market for goods, had been slow. But after meeting with the businessmen, Trump directed his trade representative to continue negotiations. Even Swiss Economics Minister Guy Parmelin admitted to the press that “everything accelerated” at that point.
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Meanwhile, two Green Party parliamentarians have called for an investigation by the Attorney-General’s office into whether the events are a criminal breach of bribery laws.
An ‘undue advantage’
In Switzerland, article 322 of the criminal code forbids offering “an undue advantage” to a foreign official in order for them to carry out an act in connection with their official activities that’s dependent on their discretion.
An advantage is “undue” if it’s not owed as dues (taxes, for example, are considered dues) and isn’t permitted by law or tolerated as socially acceptable, said Claude Bertschinger, a lecturer in criminal law at the Zurich University of Applied Sciences. The interpretation of what is “socially acceptable” depends on local laws and customs, he added.
In Switzerland, Bertschinger said it would be “socially acceptable” for a government official to receive chocolates, but more expensive presents would be unacceptable and thus an undue advantage.
Swiss government employees cannot keep gifts worth more than CHF200 ($250) – anything over that must be transferred to the state. For US officials, the cap is $480 for gifts from foreign governments.
Reports say the Rolex clock could be worth as much as CHF40,000, and the gold bar – reportedly engraved with the numbers 45 and 47 for Trump’s presidencies – up to CHF100,000.
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What Switzerland’s trove of official gifts says about diplomacy
Usage and context are also key in deciding if an advantage is undue, Deborah Hondius, a lawyer specialising in economic crime, toldExternal link Swiss public radio RTS. Gifts offered as courtesy or gratitude wouldn’t be considered so, she said.
Both precious metals company MKS Pamp and Rolex declined to explain the intent behind the gifts. But MKS, whose chief executive offered the gold bar, said in a statement to Swissinfo: “The gifts were presented to the Presidential Library on behalf of the group who attended the meeting, in full compliance with both US and Swiss law, and were cleared with the White House ethics counsel.”
Partners Group co-founder Alfred Gantner reiterated in a media interview that the gifts were not for Trump, “but for the American public, for the Presidential Library.”
But the presidential library, according to a former ethics counsel for George W. Bush, is a private organisation. Thus, any gift offered to the library is arguably not for the American people, saidExternal link Richard Painter on American public radio NPR.
So far in his second term, Trump has received several extravagant gifts, including a $400 million luxury jet from Qatar that the White House said will be transferred to his library. Trump recently signed an executive order promising to defend Qatar if it is attacked by another country.
A quid pro quo?
Another consideration for finding someone liable for bribery is that “a quid pro quo within the realm of power of the official is needed,” said Bertschinger.
According to Parmelin, the company executives’ meeting with Trump was a chance for Switzerland to bring the subject of tariffs to the president’s attention.
“When we heard from business representatives that some of them might have direct access to the Oval Office, we saw an opportunity to put the issue at the top of the list,” the minister told the Tages Anzeiger newspaper.
Since Trump imposed the tariffs by presidential executive order and these tariffs had come into force, “one could argue that imposing tariffs is – apparently – ‘dependent on the discretion’ of the president,” Bertschinger said. “So potentially there might have been a valid quid pro quo, as the tariff changes were announced shortly after the gifts were offered to the president.”
Parmelin insisted the CEOs met with Trump solely “to explain their position”. “It’s still the Federal Council [Swiss government executive] that negotiated,” he said.External link
A spokesperson for the government told Swissinfo the meeting between the businessmen and the US president was “a private initiative” and declined further comment.
Beyond Switzerland
One final element to consider is where any alleged bribery took place.
“The criminal code normally only applies when a felony or misdemeanour is committed in Switzerland,” said Bertschinger, whereas the gifts were offered at a meeting that took place entirely in the US. According to the criminal code, an offence is considered to be committed at the place where the person commits it or where the offence has taken effect.
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The law does provide exceptions to these rules, but their applicability has not yet been tested in a similar case, the lawyer said.
“In light of the lack of precedent”, he said, “it’s impossible to say with certainty if these exceptions might apply.”
It remains to be seen if the Attorney-General’s office decides to investigate, and if it does, whether it finds the criminal code is relevant in the case of the Rolex clock and the gold bar.
Edited by Tony Barrett/vm/ac
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