TF, 08/13/2026, 6B_85/2026, 6B_96/2026
Facts
A.________, an employee of B.________ AG, was responsible for, among other things, a curtain system supplied by the Dutch company D.________ AG.
At the same time, he was the manager and a partner of E.________ GmbH.
In 2014, his employer, B.________ AG, had formally prohibited him from using E.________ GmbH as a supplier (Fact B.b).
Between August 2019 and March 2021, A.________ set up a scheme to circumvent this prohibition.
His own company, E.________ GmbH, ordered spare parts from D.________ AG and resold them to his employer, B.________ AG, using the sole proprietorship F._________, managed by C.________, as an intermediary.
C.________, who was also an employee of E.________ GmbH, had no expertise or infrastructure in this field and received only a symbolic commission of 100 CHF per transaction.
Almost all of the profit (approximately 40,000 CHF) went to E.________ GmbH, and therefore indirectly to A.________ (Fact B.b).
The Court of First Instance, and subsequently the Court of Appeal of the Canton of Aargau, found A.________ guilty of professional fraud and C.________ guilty of complicity in fraud.
They were given suspended monetary penalties and were held jointly and severally liable for the damages caused to B.________ AG (Facts A, B.a)-
A.________ and C.________ (hereinafter: the appellants) have filed a criminal appeal with the Federal Supreme Court, seeking their acquittal.
They primarily contest the existence of fraudulent deception and damage (Fact C).
Legal Analysis
Fraud (Art. 146 para. 1 SCC) requires that an offender, with the intent of unlawful enrichment, cunningly deceives a person, maintains them in error, and thereby induces them to perform acts prejudicial to their own pecuniary interests or those of a third party (recital 2.2.1).
Deception may result from conduct implying a certain state of affairs.
It must be cunning, meaning it must be based on a web of lies, fraudulent maneuvers, or the exploitation of a specific relationship of trust.
Cunning is excluded if the victim could have avoided the error with a minimum of attention (the victim's co-responsibility criterion) (recitals 2.2.2, 2.2.3, 2.2.4).
When a legal entity is the victim, the deception and the error must occur in the mind of a natural person acting on its behalf (e.g., a director, a superior) (recital 2.2.5).
A causal link (or motivational link) must exist between the error induced by the deception and the act of disposition that causes the damage.
Damage is an actual reduction in the victim's assets (recital 2.2.6).
Application to the specific case
The Cantonal Court found that A.________ had deceived their employer by concealing the involvement of their own company (E.________ GmbH) in the supply chain, using C.________'s company as a mere front.
The individual deceived was A.________'s direct supervisor, who approved the invoices (recital 2.3.1, 2.3.3, 2.4.1).
The Federal Supreme Court, however, notes a break in the causal link between the deception and the damage.
The deception and the supervisor's error concerned only the identity of the intermediary (they believed they were contracting with F._________ when it was actually E.________ GmbH).
They were not deceived regarding the possibility of purchasing directly from the manufacturer, D.________ AG, nor regarding the fact that the price charged by the intermediary was higher than a direct purchase price (recital 2.4.2).
However, the damage determined by the Cantonal Court is calculated based on the difference between the price paid to the intermediary and the price B.________ AG would have paid if purchasing directly from D.________ AG.
This damage therefore does not stem from the error regarding the intermediary's identity, but from the decision not to purchase directly.
Since A.________ is not accused of having deceived their supervisor regarding the possibility of a direct purchase, the causal link between the error (who is the intermediary?) and the damage (what is the additional cost compared to a direct purchase?) is broken (recital 2.4.2).
The convictions for fraud and complicity in fraud therefore violate federal law, as an essential constituent element of the offense (the causal link) is missing (recital 2.4.2).
Issue
The Federal Supreme Court allows the appeals (Ruling 1).
It sets aside the judgments of the Court of Appeal of the Canton of Aargau and remits the case for a new decision in accordance with the reasoning (Ruling 1).
No court costs are charged (Ruling 2).