Can a compliance officer be personally liable? Germany and Switzerland compared

Short answer: Yes, a compliance officer can be criminally liable for failing to prevent offences from within the company despite a duty to act. In Germany, the Federal Court of Justice holds that compliance officers regularly have a guarantor duty under section 13(1) of the Criminal Code (5 StR 394/08, 2009); in Switzerland, Art. 11 of the Criminal Code governs omissions. Alpinum Solutions provides compliance officers who can also hold formal regulatory functions.

This guide is written for boards, heads of compliance and HR leads in Switzerland and Germany. It explains where personal responsibility in a compliance role comes from, how the two countries deal with it and what companies should put in writing when they fill the role on an interim basis.

What is at stake: personal responsibility in a compliance role

A compliance officer rarely commits an offence by acting; the risk lies in failing to act. Both legal systems punish omissions: a person with a special duty to prevent harm who stays passive can be treated as if they had committed or assisted the offence.

• The role: compliance officers are there to prevent breaches of law, in particular criminal offences committed from within the company. That is how the German Federal Court of Justice describes their remit (BGH, 5 StR 394/08, para. 27).
• The risk: this very remit can create a personal duty to intervene. What matters is the scope of duties the person has actually taken on.
• The limit: not every job with “compliance” in the title carries the same duty. The mandate, the powers and the reporting line decide.

Germany: the legal position and primary sources

In Germany, the Federal Court of Justice holds that persons entrusted with corporate compliance will regularly have a guarantor duty within the meaning of section 13(1) of the Criminal Code (Strafgesetzbuch, StGB). They must prevent offences by company staff that are connected with the company’s business (BGH, judgment of 17 July 2009, 5 StR 394/08, para. 27).

What the court decided

• The case: the head of the legal department and internal audit of a public-law institution was convicted of aiding and abetting fraud by omission. He knew of excessive tariffs and could have stopped them by informing the chief executive or the chair of the supervisory board (paras. 1, 31).
• Taking on a set of duties: a guarantor position can arise from a service contract. Signing a contract or an employment relationship alone is not enough; what counts is actually assuming the duties (para. 25).
• Purpose of the mandate: the content and scope of the duty depend on whether the person only has to prevent breaches against the company or also breaches committed by the company. The job description has to be assessed on that basis (para. 26).
• Compliance officers: their guarantor duty is the flip side of the duty they owe management to prevent breaches of law and criminal offences (para. 27). The court made this point in addition; the case itself concerned internal audit.

What applies to the company

When setting a regulatory fine against a company, the Federal Court of Justice treats it as relevant whether the company has put in place an effective compliance management system designed to prevent breaches of law (BGH, judgment of 9 May 2017, 1 StR 265/16, para. 118). A working compliance function therefore protects the company and at the same time requires clearly defined duties for the person who holds it.

Switzerland: the legal position and primary sources

In Switzerland, a felony or misdemeanour can also be committed by a failure to act in breach of duty (Art. 11(1) Swiss Criminal Code, version of 1 November 2026). A duty to act can arise in particular from the law or from a contract (Art. 11(2)(a) and (b)).

• Equivalence: an omission is only punishable if the person can be blamed in the same way as if they had acted. The court may reduce the penalty (Art. 11(3) and (4)).
• Attribution within the company: special duties that rest only on the company are attributed to individuals acting as a corporate body, as employees with independent decision-making powers in their area, or as de facto managers (Art. 29 Swiss Criminal Code).
• Corporate criminal liability: for money laundering (Art. 305bis) and bribery offences, the company is punished regardless of any individual’s liability if it failed to take all reasonable organisational measures required; the fine can reach CHF 5 million (Art. 102 Swiss Criminal Code).
• Financial intermediaries: anyone who wilfully breaches the duty to report under Art. 9 of the Anti-Money Laundering Act (GwG) faces a fine of up to CHF 500,000, or up to CHF 150,000 if acting negligently (Art. 37 GwG, version of 1 October 2026).

No Swiss leading judgment comparable to the German ruling on compliance officers was reviewed for this guide. Whether a duty to act exists is therefore assessed under Art. 11 of the Swiss Criminal Code on the basis of law, contract and function.

Germany and Switzerland compared

Both countries punish omissions where there is a duty to act; Germany also has an explicit statement from its highest criminal court on compliance officers.

Source: compiled by Alpinum Solutions from the judgments and statutes cited, as of November 2026.

What companies should settle for interim appointments

An interim appointment follows the same logic as a permanent one: the duties follow from the role actually assumed, not from the type of contract. Put the following in writing before the start:

1. Mandate and purpose: is the person only reviewing internal processes, or also expected to stop breaches of law from within the company?
2. Powers: which decisions can they take, and which do they only prepare?
3. Reporting and escalation line: whom do they inform if they suspect wrongdoing, up to management and the supervisory body?
4. Handover: which open cases, reports and deadlines do they take over from their predecessor?
5. Documentation: how do they record alerts, enquiries and decisions?

Under staff leasing, the client generally holds the right to give professional instructions and the professional is integrated into its organisation. Under freelancing, the professional works independently within the agreed mandate. Alpinum Solutions fills compliance roles under both models, part-time or full-time, at a workload of 20 to 100 %. How to fill roles such as money laundering reporting officer or data protection officer on an interim basis is covered in statutory officer roles on an interim basis.

Limits and risks

An interim mandate does not shift responsibility: management remains responsible for the compliance organisation, the professional for the duties they have taken on.

• Unclear roles: without a written description, a court will look at the role as it was actually performed. That can go further than intended.
• No access to the top: someone who cannot report concerns to senior management can hardly stop them. In the German case, informing the board or supervisory board would have been enough (para. 31).
• Individual cases: whether a person is criminally liable always depends on the facts. Involve your legal department or a law firm for your specific case.

Frequently asked questions on compliance officer liability

Is a compliance officer automatically liable if an offence occurs in the company?

No. An omission is only punishable if there was a duty to act, the person could have prevented the offence and could reasonably have been expected to do so. In Germany, the decisive factor is the set of duties actually assumed (BGH, 5 StR 394/08, paras. 25, 26 and 31). In Switzerland, Art. 11 of the Criminal Code also requires the omission to be equivalent to active conduct.

Is an interim compliance officer liable in a different way from a permanent employee?

According to the German Federal Court of Justice, what matters is not the legal form but the duties actually assumed; a guarantor position can also arise from a service contract (paras. 23 and 25). An interim professional who takes on the same tasks therefore generally bears the same responsibility. Describe the mandate and powers in writing before the start.

Does the German ruling also apply in Switzerland?

No. Judgment 5 StR 394/08 concerns German criminal law. In Switzerland, Art. 11 of the Criminal Code applies: a duty to act can arise in particular from law or contract. In addition, Art. 29 attributes special duties of the company to corporate bodies and to employees with independent decision-making powers.

How can a compliance officer protect themselves?

The key elements are a clear job description, a direct reporting line to management and the supervisory body, and careful documentation. Anyone who suspects wrongdoing should escalate it internally and keep a record. In the German case, informing the chief executive or the chair of the supervisory board could have stopped the offence (para. 31).

Can the company itself be punished?

In Switzerland, yes: Art. 102 of the Criminal Code provides for a fine of up to CHF 5 million if an offence cannot be attributed to any individual because of poor organisation, and for money laundering and bribery even independently of that. In Germany, courts consider whether an effective compliance management system is in place when setting the fine (BGH, 1 StR 265/16, para. 118).

Next step

Alpinum Solutions is the leading provider of interim legal & compliance in the DACH region and provides compliance officers and heads of compliance through staff leasing and freelancing. Selected profiles are usually available within 48 hours; companies and Alpinum agree the start date together. Which insurance and liability rules apply on interim assignments is explained in liability and insurance on temporary assignments.

• Interim compliance: filling compliance officer and compliance lead roles
• Liability and insurance on temporary legal and compliance assignments
• Head of compliance leaves: filling the role on an interim basis
• Models and legal framework: all guides
• Discuss your needs

Last updated: 11 November 2026.