Office of the Attorney General closes its criminal investigation against Glencore International AG with a summary penalty order and an abandonment order
Bern, 05.08.2024 - After four years of investigation, the Office of the Attorney General of Switzerland (OAG) has closed its criminal investigation against Glencore International AG (hereinafter: Glencore). It specifically imposes a summary penalty order on the grounds of corporate responsibility for Glencore's failure to take all necessary and reasonable organizational measures with regard to the bribery of foreign public officials by a business partner in connection with the latter's acquisition of minority stakes in two mining companies in the Democratic Republic of Congo (DRC) in 2011. The OAG ordered Glencore to pay a fine of CHF 2 million and a compensation claim amounting to USD 150 million. Regarding a part of the other facts investigated by the OAG and relating to Glencore's business activities in the DRC between 2007 and 2017, the OAG issued an abandonment order.
In the summary penalty order of 5 August 2024, Glencore is held criminally liable of corporate liability (Art. 102 para. 2 SCC in conjunction with Art. 322septies SCC) for failing to take all necessary reasonable and organizational measures to prevent the bribery of a Congolese public official by its business partner. The bribery by the business partner took place in 2011 in connection with his acquisition of minority stakes from the state-owned mining company in the DRC for less than their value. The mining shares were taken over by the business partner, who also safeguarded the interests shared with Glencore, and Glencore failed to ensure adequate management of the resulting risks. The OAG ordered Glencore to pay a fine of CHF 2 million and a compensation claim amounting to USD 150 million. The fact that Glencore has cooperated with the prosecuting authorities since the opening of the criminal investigation in June 2020 has been taken into account in the reduction of the penalty.
Abandonment orders
At the same time, the Office of the Attorney General of Switzerland abandoned the proceedings against Glencore with regard to its business activities in the DRC between 2007 and 2017 in connection with the mines operated by it on the basis of Art. 319 para. 1 lit. a of the Swiss Code of Criminal Procedure. In particular, the proceedings relating to the 2008 / 2009 renegotiations for a joint venture with the Congolese state mining company were also abandoned.
Already in May 2023, the OAG had ordered a partial abandonment of the present criminal proceedings against Glencore with regard to two of the facts and ordered the payment of a compensation claim by Glencore amounting to approximately CHF 27 million (USD 29 million). These partial abandonment orders were issued in connection with the Guilty Plea of Glencore before the US prosecution authorities, communicated in May 2022.
Cooperation with the Netherlands
In parallel to the present criminal proceedings by OAG, the Dutch authorities (Dutch Public Prosecution Service, DPPO) conducted a criminal procedure against Glencore on suspicion of bribery in connection with the purchase of mining rights in DRC. The OAG and the DPPO had been working closely together, coordinating their investigations. The OAG thanks its partners for the good cooperation.
These rulings conclude the OAG's criminal investigation against Glencore on criminal liability of the company in relation to the acquisition and operation of its mining companies in the DRC between 2007 and 2017.
Glencore has declared that it will not appeal against the summary penalty order and the abandonment order. These rulings are therefore final. They can be obtained on request and subject to the usual conditions from the Legal Service of OAG (rechtsdienst@ba.admin.ch).
Original text of the press release in German.
Address for enquiries
Communication Service of the Office of the Attorney General of Switzerland, info@ba.admin.ch, +41 58 464 32 40
Publisher
Office of the Attorney General of Switzerland
http://www.ba.admin.ch/
