Dr. Marcel Meinhardt is a leading expert in competition law and is renowned for his broad, first-rate practice. He specialises in all areas of Swiss and European merger control work and competition law, particularly in the postal services, insurance, banking, motor-car, energy, media, retail, construction, pharma and ticketing sectors. Marcel Meinhardt also advises on regulatory issues in connection with the electricity and gas industry. He has been responsible for a large number of merger notifications to the Swiss Competition Commission and co-ordinated multi-jurisdictional filings. Marcel Meinhardt advises in contentious and non-contentious matters and has acted in high profile cases on alleged abuses of dominant positions and vertical restraints. He heads the competition and regulated practice group of Lenz & Staehelin.
Competition, General Contract and Corporate, Energy and Regulated Markets, Litigation, Public Procurement, Telecoms & Media, Internal Investigations
German, English, French
Education and Professional Experience
Swiss Association for Competition Law (ASAS), Zurich Bar
Association (ZAV), Swiss Bar Association (SAV), Studienvereinigung Kartellrecht eV., International Bar Association (IBA), American Bar Association (ABA)
Key clients (Selection)
While certain stakeholders consider the existing system of collective redress in Switzerland to be sufficient, it seems possible that the unsuccessful outcome of Foundation for Consumer Protection lawsuits could revive the debate on the strengthening of collective redress in the Swiss legal system, particularly in the context of the ongoing revision of the Civil Procedure Code. In the longer term, this could also lead to a facilitation of collective redress in civil antitrust law, which is currently extremely challenging.
Under Swiss law, a proposed concentration triggers a mandatory pre-merger notification if one of the undertakings concerned has been held to be dominant, irrespective of the statutory turnover thresholds. It was previously unclear whether this criterion had to be met at the time of signing or at the time of closing. The Secretariat of the Swiss Competition Commission has now clarified this question.
Companies in a wide range of industries are facing major challenges due to the COVID-19 crisis. Such challenges include strongly increased or decreased demand, possible supply chain bottlenecks and even supply shortages. Although the situation is exceptional, antitrust rules still apply. The only exceptions are if the government and authorities order measures to combat the COVID-19 crisis that restrict competition.
The Federal Supreme Court recently confirmed that Swisscom had abused its dominant position by charging abusive prices for wholesale broadband services between 2001 and 2007. Swisscom was found to have left its competitors no possibility to gain a sufficient profit margin between the wholesale prices charged by Swisscom and their retail prices (so-called 'margin squeeze'). This was the court's first judgment where it examined a margin squeeze under Swiss competition law.
The Competition Commission (ComCo) recently fined a Swiss manufacturer of skis and other sporting goods Sfr140,000 for vertical price fixing with its dealers. The fine was rather low, as the manufacturer had filed a leniency application and entered into an amicable settlement with ComCo. This settlement decision underscores ComCo's strict approach vis-à-vis hardcore vertical agreements and sheds light on how ComCo views restrictions of selective (online) distribution in Switzerland.
The Competition Commission (ComCo) recently closed its investigations into bid rigging in the construction industry and issued fines of Sfr11 million, an amount which would have been much higher had the commission not deducted the damages compensation paid by the cartelists to the victims from its claims. By introducing the possibility of compensating cartel victims for damages in antitrust proceedings, ComCo has chosen to advocate civil antitrust law to the detriment of its leniency programme.
Under the Cartel Act, a merger filing is generally required when the relevant turnover thresholds pursuant to Article 9(1) of the act are met. However, in addition to these thresholds, the act provides for a filing obligation based on a dominant market position. As a result of legal uncertainty, a leading media group recently asked the Secretariat of the Competition Commission whether its intended acquisition of a small media agency would trigger a merger filing obligation even if the turnover thresholds were clearly not met.
In a recent bid-rigging investigation, the Federal Administrative Court held that assessing the procedural role of a witness or company representative must be based on the circumstances at the time of the interrogation. The court found that interrogation of a witness is permissible only if it concerns purely factual information that could have no direct incriminating effect on the complainant with regard to a possible violation of competition law.
The Secretariat of the Swiss Competition Commission recently issued advice in respect of Article 23(2) of the Cartel Act to two shareholders in a jointly controlled joint venture. The advice clarifies that joint control is given when the parent companies must agree on all important matters relating to the joint venture. Where several parent companies have unequal stakes in a company, minority shareholders must have a right to veto decisions that are essential to the strategic commercial behaviour of the joint venture.
The Swiss Competition Commission recently fined two local energy suppliers for abuse of a dominant position in the natural gas market. The suppliers' refusal to grant third parties access to their pipeline grids was qualified as an unlawful refusal to deal. This decision has already had an impact, as electricity suppliers have begun to enter the natural gas market.
The Swiss Competition Commission (ComCo) recently reviewed whether Energie Wasser Luzern Holding AG and Erdgas Zentralschweiz AG had a dominant position in the natural gas market and whether their refusal to grant grid access qualified as an unlawful refusal to deal. The undertakings ultimately concluded a consensual settlement with ComCo which – combined with the future Gas Supply Act – will likely improve competition in the gas supply market.
A consultation on the revised Electricity Supply Act has shown that a majority of people support a full market opening, but that more incentives for investment in domestic renewable energies and planning security are desired. The amendments envisaged by the Federal Council will enable Switzerland to increase electricity production from renewable energies, better integrate such electricity into the electricity market and strengthen its supply security.
This article provides a non-exhaustive analysis of the legal situation regarding trading with natural resources in Switzerland, with a primary focus on new regulations and reference to foreign financial institutions. At the beginning of 2020, a new regulation came into force which also affected trading with natural resources. In general, trading in physical commodities does not require a licence, whereas trading in securities or derivatives on a commercial basis is subject to licensing requirements.
The government recently confirmed its proposal to fully liberalise the Swiss electricity market. This liberalisation will be accompanied by measures which strengthen domestic renewable energies and improve supply security. It is now up to the Federal Department of the Environment, Transport, Energy and Communications to submit a discussion paper to the government setting out the key parameters for such liberalisation and additional adjustments to be made to the Electricity Supply Act.
The CO2 Agreement between Switzerland and the European Union aims to link the Swiss and EU emissions trading systems (ETSs) to allow energy-intensive industries which currently participate in only the Swiss ETS to access the more dynamic EU emissions market. As under the current regime, the CO2 tax on fuels will be reimbursed to plant operators participating in the Swiss ETS at their request; however, a new exception applies to so-called 'fossil-fuel thermal power plants'.
In a recent case, Land Rover terminated a service contract with an authorised garage. The garage filed for preliminary relief with the Zurich Commercial Court, requesting that the court oblige Land Rover to continue the service contract after termination. The court rejected the request, concluding that Land Rover did not have a dominant position at the after-sale level.
In a recent decision the Federal Administrative Court partly rejected an appeal from a taxi company. The taxi service company was fined Sfr10,000 by the Competition Commission in 2008 for not having provided information requested by the authorities. The appeal court held that the penalty was legally justified in principle, but reduced the amount to Sfr5,000.