Swiss Competition Report for January 03 - March 03 - International Law Office

Enforcement Policy
Merger Control
Anti-competitive Practices

Enforcement Policy

Federal Competition Commission annual report
On February 4 2003 the Federal Competition Commission (FCC) held its annual press conference and published its annual report. During 2002 the FCC focused on combating vertical agreements and curbing anti-competitive practices in the financial sector. On February 18 2002 the FCC published a communication on the assessment of vertical agreements, setting out the conditions under which vertical agreements will be considered compatible with the Competition Act. As a result of the publication of this communication, over 100 complaints were filed, six of which have led the FCC to open a preliminary investigation.

In October 2002 the FCC also published a communication on vertical agreements in the field of motor vehicle distribution, which aims to improve intra-brand competition and stimulate competition in the market of new motor vehicles, spare parts and after-sales services. Throughout 2002, interim measures, which force undertakings to change their behaviour immediately, became particularly important. The FCC closed four investigations, two of which ended in an amicable settlement. It was also served with 42 notifications of concentrations, 38 of which were cleared during the preliminary investigation.(1)

Appointments
Professor Roland von Büren, chairman of the FCC, resigned as of December 31 2002. His resignation triggered a wave of new appointments. Professor Walter Stoffel, a former vice-chairman of the FCC, has been appointed chairman as of January 1 2003. He is in charge of the FCC's Infrastructure and Media Division. Professor Yves Flückiger, a former member of the FCC, has been appointed vice-chairman, and is responsible for the Product Markets Division. Professor Roger Zäch remains vice-chairman and head of the Services Markets Division.

Exhaustion of patent rights
In March 2003 the FCC adopted a position on the results of a study, ordered by the Swiss Federal Council, which suggested that the introduction into Swiss law of the principle of international exhaustion of patent rights would have minor effects on the Swiss market. The FCC considered that, to the contrary, the application of this principle could favour parallel imports and weaken the partitioning of the Swiss market.(2)

Annual report of the price supervisor
In February 2003 the price supervisor published his annual report for 2002. The price supervisor focused on network infrastructures (electricity market, cable and television networks) and the health sector. The price supervisor reached three settlements with undertakings imposing abusive prices and issued 40 recommendations to various authorities.(3)

Merger Control

On February 3 2003 the FCC decided to conduct an in-depth investigation of Coop's acquisition of Waro. The preliminary investigation revealed signs that the acquisition might strengthen Coop's dominant position in certain supply markets, in particular the fresh food supply market. The FCC also held that the acquisition might create or strengthen Coop's dominant position in the distribution market (at local or national level), in particular by increasing barriers to market entry for new competitors.(4)

Anti-competitive Practices

Driving schools
On January 6 2003 the FCC charged the members of the Association of Driving Instructors of Graubünden and Liechtenstein Canton with breaching the Competition Act, as although the association had not recommended official tariffs since 1998, the members had continued to apply the old recommended prices. According to the FCC, this behaviour amounted to a concerted practice and, as its object was the price of driving lessons, to an unlawful price-fixing agreement. The FCC has indicated that it will review any similar recommended tariffs which restrict competition between driving instructors.(5)

Health insurance
On March 27 2003 the FCC opened an investigation against the members of Santésuisse, an association of health insurance companies. The investigation aims to show whether these members breached the Competition Act by entering into an agreement with a supplier of incontinence aids. Pursuant to the agreement, the insurance companies undertook to reimburse the costs of that particular supplier's products at a predetermined price.(6)

For further information on this topic please contact Silvio Venturi at Tavernier Tschanz by telephone (+41 22 704 37 00) or by fax (+41 22 347 978941) or by email (venturi@ttv.ch).

Endnotes

(1) FCC Annual Report 2002, www.wettbewerbskommission.ch/site/e.html.

(2) FCC press release, March 7 2003, www.wettbewerbskommission.ch/site/e.html.

(3) www.monsieur-prix.admin.ch.

(4) FCC press release, February 6 2003, www.wettbewerbskommission.ch/site/e. html.

(5) FCC press release, January 16 2003, www.wettbewerbskommission.ch/site/e.html.

(6) FCC press release, March 28 2003, www.wettbewerbskommission.ch/site/e. html.