Q&A: construction regulation and compliance in Switzerland & More News Here

Regulation and compliance

Licensing procedures

Must overseas designers and contractors be licensed regionally to work and, if that’s the case, what are the implications of working and not using a licence?

There is not any basic licensing requirement for contractors. However, overseas designers and contractors should observe Swiss laws on dispatching workers (eg, work permits, minimal wages and work security). Moreover, there are particular licensing necessities for overseas architects. These necessities are set out in cantonal regulation solely (there are not any provisions at a federal degree). This outcomes in totally different licensing regimes being relevant. As at May 2022, solely the next six of 26 cantons had particular licensing necessities for overseas architects in place: Geneva, Vaud, Neuchâtel, Fribourg, Ticino and Lucerne. In these cantons, sure licensing necessities apply when offering providers in the related cantonal territory. For architects domiciled in an EU member state, there’s a standardised (simplified) registration course of, which must be undertaken earlier than offering the related providers in one of many regulated cantons.

Competition

Do native legal guidelines present any benefit to home contractors in competitors with overseas contractors?

No. Particularly with respect to public procurements, the related cantonal and federal regulation, in addition to worldwide treaties, set up that every one bidders have to be handled equally. However, there are particular restrictions for overseas bidders exterior the scope of worldwide treaties. In specific, overseas bidders are solely permitted to submit a young if their international locations of origin grant reciprocal rights or if the contracting authority agrees (article 6, paragraph 2 of the Federal Act on Public Procurement (PPA) and article 6, paragraph 2 of the revised Intercantonal Convention on Public Procurement (rICCP)). Furthermore, in the case of contracts exterior the scope of worldwide treaties, authorized safety is restricted for non-Swiss bidders (article 52, paragraph 2, PPA and article 52, paragraph 3, rICCP). 

Competition protections

What authorized protections exist to make sure honest and open competitors to safe contracts with public entities, and to stop bid rigging or different anticompetitive behaviour?

Legal safety in relation to public entities’ behaviour with regard to honest and open competitors is especially granted by public procurement guidelines. Essentially, any violation could also be topic to an enchantment; for instance, unfair tender circumstances, bid rigging and unequal therapy of rivals. Contractors have to be conscious that they need to object to some violations instantly (eg, in the case of unfair tender circumstances). Under the revised procurement regulation, procuring entities are actually explicitly obliged to take measures towards conflicts of curiosity, illegal non-competition agreements and corruption (article 11, lit. b, PPA/rICCP). In addition, bidding rounds – which means pure worth negotiations – are henceforth prohibited on the cantonal and federal ranges (article 11, lit. d, PPA/rICCP). Finally, the violation of corruption provisions could result in the exclusion of a provider from future tenders by procuring entities for a most length of 5 years and to revocation of an award (article 44, paragraph 1, lit. e in conjunction with article 45, paragraph 1, PPA/rICCP).

Bribery

If a contractor has illegally obtained the award of a contract, for instance by bribery, will the contract be enforceable? Are bribe-givers and bribe-takers prosecuted and, if that’s the case, what are the penalties they face? Are facilitation funds allowable underneath native regulation?

Contracts with illegal or immoral content material are null and void underneath Swiss regulation. As a consequence, contracts masking the cost of bribes would not have any authorized results in any respect. Contracts with lawful content material obtained by way of an act of corruption, however, aren’t robotically void (Supreme Court Decision 129 III 320). Nevertheless, these contracts could also be voided by one of many contracting events by claiming a elementary error when coming into into the contract or fraudulent behaviour by the opposite occasion. Whether a contracting occasion is in a place to efficiently problem the contract is dependent upon the information underlying the precise case.

Bribe-givers and bribe-takers are prosecuted and face imprisonment for as much as 5 years or a financial penalty (article 322 ter ff. of the Swiss Criminal Code (SCC)). Facilitation funds are additionally felony offences for which each the general public official and the individuals appearing on behalf of the contractor could also be sentenced to a most of three years’ imprisonment or a financial penalty (article 322 quinquies and article 322 sexies, SCC). In addition to the people giving bribes or making facilitation funds, the corporate using or commissioning these people could also be prosecuted if it has didn’t take all cheap organisational measures which are required to stop the related felony offences (artwork. 102, paragraph 2, SCC).

Reporting bribery

Under native regulation, should workers of the mission crew members report suspicion or data of bribery of presidency workers and, if that’s the case, what are the penalties for failure to report?

No, there is no such thing as a such obligation in the personal sector. Government workers, however, are required to report suspicion or data of bribery of public officers.

Political contributions

Is the making of political contributions a part of doing enterprise? If so, are there legal guidelines that prohibit the power of contractors or design professionals to work for public businesses due to their monetary assist for political candidates or events?

The making of political contributions just isn’t a part of doing enterprise. Even if political contributions are made, there are not any legal guidelines in Switzerland that prohibit the power of contractors or design professionals to work for public businesses due to their monetary assist for political candidates or events.

Compliance

Is a construction supervisor or different construction skilled appearing as a public entity’s consultant or agent on a mission (and its workers) topic to the identical anti-corruption and compliance guidelines as authorities workers?

A construction supervisor or different construction skilled appearing as a public entity’s consultant or agent will often not be topic to the identical anti-corruption and compliance provisions as a public official. Nevertheless, bribery of or by personal people (ie, people not qualifying as public officers) can also be a felony offence, which can be punishable by imprisonment for as much as three years or a financial penalty (article 322 octies and article 322 novies, SCC). However, the authorized scenario is totally different when personal people fulfil official duties (which will be the case, for instance, when an exterior mission supervisor is named in by a public authority for the principle preparation of tender paperwork and the analysis of the bids in view of a public procurement). In this case, personal people could also be topic to the identical provisions as public officers, which is the case, for instance, with respect to the foundations on bribery (article 322 decies, paragraph 2, SCC).

Other worldwide authorized issues

Are there some other vital authorized points that will current obstacles to a overseas contractor making an attempt to do enterprise in your jurisdiction?

There are restrictions in Switzerland in relation to buying non-commercial actual property by overseas people, overseas authorized entities or Swiss authorized entities underneath overseas management (see the Federal Act on the acquisition of actual property by individuals overseas (‘Lex Koller’)). As such, overseas contractors will sometimes not be capable to purchase the properties they’re growing except these properties are used solely commercially (eg, manufacturing premises, workplaces, purchasing centres, retail premises and accommodations). Of course, this restriction doesn’t forestall a overseas contractor from growing a non-commercial property owned by a Swiss investor.

As Switzerland is a civil regulation nation, contractors from frequent regulation international locations must be conscious that the foundations governing contract interpretation could differ from frequent regulation. As such, Swiss courts will set up the actual and frequent intention of the contracting events in the case of a dispute by decoding not solely the wording of the contract but in addition contemplating proof exterior the contract.

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30 April 2022

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