During the economic crisis caused by the COVID-19 pandemic, many businesses were severely impacted. In response to this situation, the state took the initiative to support these businesses by offering them the possibility of obtaining loans of up to CHF 500,000 at an interest rate of 0% (Art. 13 para. 3 OCaS-COVID-19).
Businesses had the opportunity to be granted these loans between March 26, 2020, and July 31, 2020, with the condition of repaying them within five years.
However, several recipients of these COVID loans are now being prosecuted for using these funds in ways that do not comply with the law, notably by using them for salary payments. The main issue is to determine what uses were authorized and what the legal and financial consequences might be for those who have violated the established rules.
Thus, the procedure is simplified and the granting conditions are easy to fulfill. A business wishing to obtain a loan must declare:
That it was established before March 1, 2020 (i.e., before the pandemic);
That it was significantly affected economically by the pandemic, particularly concerning its revenue;
That it is financially healthy (it must not be in bankruptcy, composition, or liquidation proceedings);
That it does not already benefit from other COVID-19-related liquidity financial aid.
The COVID-19 loan is intended to cover the company’s current needs, such as rental or equipment costs incurred (Art. 6 of the commentary on the ordinance for granting solidarity loans and guarantees due to the coronavirus). This notably excludes the distribution of dividends, management fees, or the repayment of capital contributions (Art. 6 para. 3 let. a OCaS-COVID-19). Therefore, salaries are not considered prohibited operations during the solidarity guarantee period. Paying the company's executive salary is not contrary to the use of the COVID loan unless it is done abusively, meaning the salary increased after the loan was granted (CREP May 31, 2021/463; Micheli François, Spahni Elodie, Current Legal Practice, p. 480).
The Ordinance on Solidarity Guarantees Related to COVID-19 (OCaS-COVID-19) provides for several sanctions in cases of fraudulent loan acquisition and non-compliance with fund usage restrictions. Indeed, the loans are granted without thorough verification of the information provided by businesses. They are based solely on the business’s declaration.
If a company has intentionally provided false information or failed to comply with certain restrictions, it may face a fine of up to CHF 100,000. Regarding negligent violations, the ordinance does not provide for any sanctions.
A COVID-19 loan-related offense may also constitute a violation of certain provisions of the Penal Code, such as fraud (Art. 146 CP), breach of trust (Art. 138 CP), or falsification of documents (Art. 251 CP). It is noteworthy that, concerning falsification of documents, a false statement by the company does not constitute a document, unlike a document containing false information transmitted to the bank, for example (TF, 6B_244/2023, para. 4.2).
In summary, several companies are currently being prosecuted for the improper use of COVID-19 loans, wrongly if we refer to the law. Besides fines, they also risk being guilty of Penal Code violations.
If you wish to obtain more legal information on this matter, please feel free to contact the Valentin Legal Consultation. We would be happy to welcome you to our offices: either for advice or to benefit from our online services. We are also reachable by phone at 021 351 30 00 and by email at info@cdjv.ch.
Author: Ipcja Albina
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