A sales representative hands the procurement officer of a foreign state-owned enterprise a watch. The procurement officer qualifies as a foreign public official under Art. 322septies StGB only if the state-owned enterprise exercises sovereign functions and he is acting in that capacity. Whether the gift amounts to bribery turns on the act it is meant to secure, not the price of the watch. Most gift policies, however, check the franc amount — and thereby measure the wrong variable.

That this policy matters more in practice than the capped corporate fine was the subject of the piece published two days ago; the question now is what the policy should actually be asking.

The offence catches an advantage only “in connection with [the official’s] official duties for an act or omission that is in breach of duty or within his discretion.” The quid-pro-quo relationship is what makes the conduct criminal: the nexus to a specific official act. A bottle of wine worth CHF 60 that secures a concrete customs clearance satisfies it. A watch worth CHF 15,000 with no link to any official act falls outside it.

There is no catch-all provision. For Swiss public officials, the offence of conferring an advantage under Art. 322quinquies StGB also covers straightforward goodwill gifting: a benefit conferred “with a view to the conduct of official duties,” without any link to a specific act. No equivalent provision exists for foreign public officials — as Transparency International Suisse notes, it “applies only in dealings with Swiss public officials.” For foreign public officials, Art. 322septies carries the entire load, and it requires the official-act nexus.

Value matters in only one place. Under Art. 322decies para. 1 lit. b StGB, “minor, socially customary advantages” are not improper advantages. That exception, too, names no franc amount, and it falls away the moment the advantage constitutes consideration for a specific official act. The socially customary coffee remains lawful — until it buys the signature on a licence.

This leads to a correction in policy design. A threshold of “report gifts above CHF X” measures a variable the offence does not recognise. The register needs a different mandatory field: does the recipient hold or influence a decision, authorisation, tender, inspection, or proceeding that affects the company and is coming up in the months ahead? If the answer is yes, the gift must be stopped or escalated regardless of its value. What needs to be captured is the recipient’s discretionary power — not the price of the watch.

The mechanics are settled: Art. 322septies turns on the act; there is no catch-all provision for goodwill gifting to foreign officials; and the statute names no threshold. The offence carries a maximum sentence of five years’ imprisonment or a fine (Art. 322septies StGB), whether the advantage is worth CHF 15,000 or CHF 50. What remains open is how narrowly the courts will construe the official-act nexus where the advantage targets a discretionary act without a specific official act already identified. The next reading at the merits level will come from the possible appeal in the Trafigura case before the appeals chamber of the Federal Criminal Court (Bundesstrafgericht); its judgment of 31 January 2025 is not final, as today’s piece on the “enforcement gap” notes.