I. Preliminary remarks

1 The criminal offenses of granting and accepting advantages pursuant to Art. ^322quinquies f. SCC regulate the so-called “ feeding” through unspecific “gifts” and “goodwill payments” that are not directly related to an official act, but are merely granted with a view to such an act.

II. Protected legal interest

2 The protected legal interest is identical to that of active bribery of public officials (see OK-Baumgartner/Hurni, Art. 322^ter N. 1 et seq.).

III. Persons involved

3 Anyone can be the perpetrator of the granting of an advantage (see the list in OK-Baumgartner/Hurni, Art. 322^ter N. 6 et seq.). In turn, public officials are eligible beneficiaries (see OK-Baumgartner/Hurni, Art. 322^ter N. 10 et seq.).

IV. Undue advantage

4 The concept of undue advantage corresponds to that of active bribery of public officials (see OK-Baumgartner/Hurni, Art. 322^ter N. 24 et seq.).

V. Offense

5 The offense consists of an offer, promise or grant of an undue advantage (see OK-Baumgartner/Hurni, Art. 322^ter N. 38 et seq.).

VI. With regard to the performance of official duties

6 Within the scope of the offense of granting an advantage, a modified relationship of equivalence is required: The granting of an advantage does not have to be related to a specific official act (see OK-Baumgartner/Hurni, Art. 322^ter N. 52 et seq.), but it is sufficient if the undue advantage is granted with regard to the performance of official duties. An undue advantage is granted with regard to the official act if the granting of this advantage is likely to influence the future conduct of the office holder.

7 In other words, the purpose of the offence of granting an undue advantage is to make it a punishable offence to cultivate a relationship with a public official. This is the case if the advantage granted has the aim of making the public official generally favorable to the party granting the advantage. Against this background, the granting of an advantage serves as a catch-all offense for active bribery of public officials pursuant to Art. 322^ter SCC. This is particularly relevant in practice if proof of an unlawful agreement fails (see OK-Baumgartner/Hurni, Art. 322^ter N. 54).

8 The advantage granted must be capable of influencing the future conduct of the office. Against this background, customary social gifts cannot be used as grounds for criminal liability (see OK-Baumgartner/Hurni, Art. 322^decies N. 7 et seq.).

VII. Subjective elements of the offense

9 In subjective terms, intent is required, whereby contingent intent is sufficient.

VIII. Concurrence

10 Art. 322^quinqiues and Art. 322^sexies are mirror images of each other, so participation or complicity in the counter-offense is not possible.

11 Cf. OC-Baumgartner/Hurni, Art. 322^ter N. 58 regarding the relationship to Art. 322^quinquies.

Bibliography

Hilti Martin, Kommentierung zu Art. 322^sexies StGB, in: Graf Damian K. (Hrsg.), Annotierter Kommentar StGB, Bern 2020.

Pieth Mark, Kommentierung zu Art. 322^sexies StGB, in: Niggli Marcel Alexander/Wiprächtiger Hans (Hrsg.), Basler Kommentar, StGB II, 4. Aufl., Basel 2019...