The Competition Commission recently fined the Swiss subsidiary of Japanese camera company Nikon Sfr12.5 million for restricting parallel imports of its Nikon Imaging products. Following a complaint, the commission gathered evidence of Nikon restricting parallel imports into Switzerland. The commission's investigation revealed that Nikon's conduct resulted in higher prices for consumers.
The Competition Commission recently approved the proposed acquisition of Infront Sports and Media AG by Bridgepoint Capital Group Limited. The preliminary investigation revealed no indication that the proposed concentration could create or strengthen a dominant position in Switzerland. The merger was cleared after a first-stage assessment, without conditions or commitments.
The Competition Commission recently fined 17 road construction and civil engineering companies operating in the Canton of Aargau a total amount of approximately Sfr4 million for entering into price-fixing and customer allocation agreements. This penalty comes as the result of an investigation launched in June 2009. The commission set the fines on the basis of the turnover of the companies involved.
The Competition Commission has prohibited several undertakings active in the luxury cosmetics sector from exchanging information on prices, turnovers, advertising expenses and sales terms. The commission held that the information exchange between the undertakings infringed the Competition Act because it allowed the participants to adjust their market behaviour to one another.
The Competition Commission recently closed its investigation into Electrolux AG and V-Zug AG in connection with restrictions on online retailing of household appliances (ie, white goods) by reaching an amicable settlement. The commission held that the prohibitions on sales through online stores were in principle unlawful and that online sales should be restricted only under certain very strict conditions.
The Competition Commission has given its written opinion on a consultation on the partial revision of the Competition Act. The consultation follows a motion introduced in 2010 which aims to improve compliance with the act by reducing administrative fines imposed on companies that have implemented compliance programmes of a high standard in cases in which their employees violate competition laws.
The Federal Supreme Court has upheld an appeal by Swisscom – the incumbent telecommunications provider in Switzerland – against a Competition Commission decision regarding allegedly illegal mobile termination charges and overruled the record fine of Sfr333 million that had been imposed on Swisscom.
The Competition Commission has published its 2010 annual report. According to the report, 2009 saw increased activities aimed at combating significant distortions of competition. In the case of horizontal agreements, special attention was paid to the issue of bid rigging in the construction industry. As far as vertical agreements are concerned, the focus remained the foreclosure of the Swiss market by preventing parallel and direct imports.
The Competition Commission has opened an investigation into the Swatch Group. The investigation aims to determine whether the Swatch Group's decision to stop supplying competitors with certain watch components which are necessary for the manufacture of mechanical movements violates the Competition Act.
Parliament has adopted new legislation through which book prices are to be fixed. The act requires the publisher or importer to set the final retail price of books that it publishes in, or imports into, Switzerland, with retailers being compelled to resell the books at the price so determined. In response, the Competition Commission has suspended its investigation into the French-language book market.
The Competition Commission has launched a preliminary investigation into a cooperation agreement entered into between Swisscom and the city of St Gallen to extend the city's fibre-optic network. The commission intends to establish, in the context of this investigation, standards for all cooperation agreements regarding the establishment and development of fiber-optic networks.
The Competition Commission has fined four undertakings Sfr7.6 million for entering into agreements on prices with competitors in relation to the distribution of door components. The investigation showed that the undertakings had colluded in determining the level of price increases and the moment at which they would be made. An investigation into the same industry sector is underway at EU level.
The Competition Commission has opened an investigation into restrictions on online sales of household appliances. The investigation aims to establish whether the restriction of online sales constitutes a violation of competition law and is the commission's first investigation into restrictions on e-commerce. The findings should result in the establishment of standards for online commerce that will apply across all retail sectors.
The Competition Commission has approved the proposed acquisition of Sunrise by CVC Capital Partners from TDC. The preliminary investigation revealed no indications that the proposed concentration could create or strengthen a dominant position in Switzerland. The concentration was cleared after a first-stage assessment, without conditions or commitments.
The Federal Council has opened a public consultation regarding the partial review of the Competition Act. The council intends to retain the act's underlying concepts while filling certain gaps in the text, strengthening the rule of law by improving the implementing institutions and enhancing competition in the general economic interest.
The Swiss Federal Competition Commission (FCC) has undertaken a consultation for the review of its 2007 communication on vertical agreements. This new text confirms the FCC's determination to combat the isolation of Swiss markets and the maintenance of high prices in Switzerland due to competition restrictions.
The Competition Commission has prohibited the proposed concentration between France Telecom SA's and TDC A/S's respective subsidiaries in Switzerland. The commission held that the merger would have led to a situation in which Swisscom and the merged entity were dominant in the Swiss mobile telephone market.
The Federal Administrative Court has overruled the Federal Competition Commission's imposition of a Sfr333 million fine on Swisscom Mobile for an alleged abuse of its dominant position in the mobile termination market. The commission has announced its intention to appeal to the Supreme Court on the grounds of its belief that the Cartel Act should apply to regulated sectors.
The Competition Commission has found that resale price-fixing agreements between manufacturers and distributors of three medical drugs were unlawful. It imposed a fine of Sfr5.7 million on the pharmaceutical companies concerned. This is the first commission decision under its notice regarding the assessment of vertical agreements to impose a fine for price recommendations.
Swisscom AG was fined Sfr220 million by the Competition Commission for abusive margin squeezing in relation to broadband internet services provided until the end of 2007. Swisscom was found to have charged competitors excessive prices for broadband connectivity services compared with those it charged end users, thus preventing its competitors from trading profitably in the fast internet access business.
The Competition Commission has approved the proposed concentration between Tamedia and Edipresse - two of Switzerland's main regional newspaper publishers - following a second-stage assessment. The concentration was cleared without conditions and commitments under the so-called 'failing firm' doctrine.
The Competition Commission has fined eight undertakings Sfr1.24 million for collusive tendering for electrical equipment in construction projects. This decision marks the first time that the commission has imposed fines for collusive tendering and confirms the principle that the reaching of an amicable settlement does not rule out fines in respect of infringements that took place before the conclusion of that settlement.
The Competition Commission has sent the proposed concentration between Swiss Post, NZZ Group and Tamedia to a second-stage assessment. The companies plan to pool their resources to provide early delivery of newspapers and magazines. If approved, the concentration will result in a system of early distribution under the management of Swiss Post.
The Competition Commission has initiated an investigation into undertakings that are active in the roadworks and civil engineer sectors in the cantons of Zurich and Aargau. The commission discovered evidence which pointed to market sharing in the way that tenders for roadworks contracts are submitted. The commission has conducted dawn raids as part of the evidence-gathering process.
The Competition Commission has fined Felco SA and Landi Schweiz AG – two companies active in the industrial cutting tools sector – for retail price fixing. This is the first case in which penalties have been imposed due to the finding of a vertical agreement setting prices for resale, considered by Article 5 of the Competition Act to be particularly harmful to competition.
The secretariat of the Competition Commission has opened a preliminary investigation into Maestro's introduction of an interchange fee for the use of its debit card. The investigation followed a preliminary notification which was filed by Maestro with the commission before it implemented its project.
The Competition Commission has published its 2008 annual report. According to the commission, 2008 was a year of activities designed to prevent distortions of competition. This update summarizes the activities undertaken by the commission during 2008.
According to the Taskforce Cartel Act, further modifications are necessary to the act to improve the efficiency of the Competition Commission and its secretariat, international cooperation and enhanced control of mergers and vertical restraints. Complementary recommendations concern procedure, civil law and penalties.
The Secretariat of the Competition Commission has issued a decision proposal to charge the manufacturers and distributors of male impotence drugs with price fixing. Following an investigation into prices charged for erectile dysfunction medication, the secretariat came to the conclusion that Bayer (Schweiz) AG, Eli Lilly (Suisse) SA and Pfizer AG had made unlawful vertical competition agreements.
The Supreme Court has handed down a ruling in which it extended the scope of legal professional privilege to internal communications between parties and their in-house solicitors during competition investigations by the Federal Competition Commission. This protection applies only to communications with in-house solicitors, thus excluding lawyers who have not completed a bar exam.
The Federal Competition Commission has decided to discontinue its investigation into the so-called ‘tariff agreements’ in the supplementary health insurance segment. The commission ruled that insurers may, in certain conditions, organize themselves into groups in order to form a countervailing power against the dominant position held by the Lucerne public hospitals.
The Competition Commission, the Price Supervisor and the Federal Communications Commission have called jointly for the Federal Council to introduce an efficient instrument for faster determination of the network access prices charged by Swiss telecommunications companies.
An attorney-at-law settled in the canton of Vaud after a number of years of practice in the canton of Geneva. The attorney’s attempt to hire a trainee was refused on the grounds that Vaud's legislation required a practitioner to have practised in the canton for at least five years. The Supreme Court decided that the refusal violated the right to free market access granted by the Domestic Market Act.
The Competition Commission has approved Heineken's proposed acquisition of Eichhof Holding's drinks business. The commission held that there were no indications that the concentration might create or strengthen a dominant position for the Heineken/Eichhof group.
The Competition Commission has announced that it has closed its investigation into Documed's practices in relation to providing information on pharmaceutical products. Documed is a subsidiary of Galenica, which publishes information about pharmaceuticals in Switzerland.
On August 7 2007 the secretariat of the Competition Commission decided to terminate its preliminary investigation into Armasuisse's purchase of 20 training and light-transport helicopters. Armasuisse is the Swiss federal body for the procurement of technologically complex systems and equipment, security-related technologies and quality management.
On April 29 2008 Heineken announced its plan to buy the drinks business of Eichhof Holding, the last independent brewery in Switzerland. Preliminary investigations indicated that the merger could lead to the market being dominated by two groups: Heineken-Eichhof and the largest Swiss brewery, Carlsberg/Feldschlösschen. The Competition Commission thus decided to refer the case to a second-stage assessment.
The Competition Commission has approved the proposed acquisition by Swisscom AG of The Phone House's mobile-phone shops in Switzerland. Swisscom is Switzerland's largest phone company. The commission held that there would still be sufficient competition for mobile-phone services after the takeover.
The Federal Competition Commission (FCC) has published its 2007 Annual Report online. Forty-five concentrations were notified, out of which 39 were cleared during the first-stage investigation. Notably, for the first time since it received the power to punish competition law violations directly, the FCC has imposed direct administrative fines.
During January 2008 the Competition Commission initiated inquiries into suspected anti-competitive practices in the electrical equipment industry in an unnamed major Swiss city, and into the practices of two companies active in the professional cutting tools sector - the manufacturer Felco SA and the retailer Landi Suisse SA.
The Competition Commission recently closed its long-running investigation into the practices of four Bernese construction undertakings which are renovating the Swiss National Library by discontinuing its proceedings with no findings of violation. The commission found no evidence that the employer was in possession of a detailed and reliable estimate of costs.
The Competition Commission has issued a decision formally prohibiting a market-sharing cartel among 17 companies active in road asphalting in the Canton of Ticino. The commission declared that, had it been possible to impose fines, these would have totalled about Sfr30 million, with individual companies being fined up to approximately Sfr3 million.
The Competition Commission has cleared Nestlé's acquisition of the Swiss mineral water producer Sources Minérales Henniez SA, which had been controlled by the Rouge family. Although both Nestlé and Henniez are active on the relevant product market, held to be mineral water and carbonated acid-based drinks, the Competition Commission held that sufficient competition existed.
The Competition Commission has approved the concentration between the SWX Swiss Exchange, SegaInterSettle, AG and Telekurs, subject to conditions intended to prevent a foreclosure of this market. The commission's concern was that this concentration would permit certain well-established Swiss banks to exclude other banks from electronic trading of Swiss stocks.
The Competition Commission has discontinued its investigation into 'Talk & Surf' on the basis that a change in telecommunications law made it possible for competitors to offer the same bundle of services. Swisscom reacted by discontinuing to market the product and ultimately by withdrawing it.
Acting upon a complaint, the Competition Commission has launched an investigation into certain transport industry participants. These investigations are taking place not only in Switzerland, but also in the United States and the United Kingdom. It suspects that there is an agreement between a number of players in the industry in relation to the fixing of various fee categories.
The Competition Commission has approved the merger of Migros and Denner subject to the most extensive conditions to date. The Competition Commission has very little experience monitoring behavioural conditions and it will be interesting to see how effectively it performs this role in the case at hand through the intermediation of an appointed auditor.
The Competition Commission has concluded that there are no indications of collusion in the market for the provision of consumer credit. It has closed its preliminary investigation into the sector, but will continue to monitor whether the trend towards increased competition in the market continues and whether new entrants report particular difficulties in the market.
The Competition Commission recently adopted a decision discontinuing its proceedings against Cablecom. This investigation related to Teleclub's complaint that Cablecom had subjected its agreement to broadcast Teleclub's programming over its cable network to the condition that Teleclub use Cablecom's platform and client service.
Swisscom has agreed with the Competition Commission to offer the same rebate package to all internet service providers supplying asymmetric digital subscriber line (ADSL) services. In so doing, Swisscom has become compliant with interim measures ordered by the commission which Swisscom had formerly contested. Nonetheless, a second investigation concerning Swisscom's activities in the ADSL market continues.
Qualifying concentrations must be notified to the Competition Commission, which then has one month in which to decide whether to initiate an investigation. The decision to refer the Migros/Denner concentration indicated the commission's concern that the concentration might create or strengthen a dominant position in the Swiss retail market and in certain areas of supply to the Swiss retail market.
The Federal Competition Commission has launched an inquiry into Telekurs Multipay's refusal to provide interface information to support the dynamic currency conversion function on payment terminal equipment provided to merchants by competitors of its sister company, Telekurs Card Solutions. Although Telekurs has now provided this information, the inquiry will continue.
The Federal Competition Commission has issued its expert report on wholesale mobile call termination charges, which concluded that Swisscom, Orange and Sunrise have dominant positions in relation to their own networks. The commission is also investigating a complaint that the leading Swiss cable television operator regularly ties the purchase of digital television subscriptions to the purchase of a set-top box.
The Appeal Commission has held that the uniform book price practice of fixing resale prices of publishing products in Switzerland restricts competition and is not justified by reason of economic efficiencies. This is the most recent stage of a proceeding that began on September 28 1998 with an investigation into an agreement whereby publishers of German-language books fixed the resale price of such books.
The Federal Competition Commission (FCC) has held that the termination of the contracts of two valet parking services at Zurich Airport by airport operator Unique was an abuse of a dominant position. A condition of the FCC's decision was that Unique agree to allow at least one off-site valet parking service provider to operate at the airport.
The Supreme Court has issued four identical judgments in cases involving credit card acquirers - companies which sell businesses the ability to accept credit card payments from customers. The Federal Competition Commission had previously found that the four credit card acquirers held a collective dominant position in the market for such services.
The Federal Competition Commission has issued a draft amendment to the Notice on Vertical Agreements 2002. The amendment is intended to alter the existing notice to bring it into line with amendments that have been made to the Competition Act 2003 and the De Minimis Notice in order to harmonize national and EU competition law (in particular, the EU Block Exemption Regulation).
In March 2005 the Federal Competition Commission cleared a concentration of seven Swiss electricity companies subject to certain conditions. The Appeal Commission has now annulled this decision and cleared the operation without condition or commitment, holding that since there was a factual monopoly on the relevant market, the planned merger could not have the effect of eliminating competition.
On the basis of information received from third parties, the Secretariat of the Federal Competition Commission has opened a preliminary investigation against several air companies regarding the existence of agreements on surcharges on air freight. The agreements deal with surcharges relating to fuel, security, war risk and customs clearance.
The Federal Competition Commission has issued a final notice on de minimis exemptions to restrictive agreements, which aims to identify agreements that have a limited impact on competition and should therefore be excluded from the prohibition on restrictive agreements. As the notice is based on recent amendments to the Competition Act, the commission will review the effects of the notice after two years.
In 2003 the Federal Competition Commission (FCC) found that Ticketcorner held a dominant position in the Swiss market for ticket distribution systems and prohibited Ticketcorner from entering into agreements containing exclusivity clauses. The Appeal Commission recently annulled this decision due to violation of Ticketcorner's right to be heard and remanded the case back to the FCC for further investigation.
The Federal Competition Commission has issued a new draft notice on de minimis exemptions to restrictive agreements, which takes into account the latest amendments to the Competition Act. The purpose of the draft notice is to identify agreements which have a limited effect on competition. It is subject to public comments until September 30 2005.
Since the Swiss Competition Act came into force in 1996, the issue of a third party's right to appeal decisions regarding concentrations has been a controversial one. In a recent decision the Swiss Supreme Court held that third parties - including competitors - have no right to appeal decisions regarding concentrations, irrespective of any legitimate interest they may have.
The Federal Competition Commission has prohibited a framework distribution system between Swiss booksellers and Swiss, German and Austrian publishers, which imposed the retail prices of German-language books sold to end consumers in Switzerland. It has also cleared Swisscom's acquisition of a majority participation in Cinetrade and a concentrative joint venture in the electricity market.
The Federal Competition Commission recently consulted on a draft de minimis notice that aims to identify those agreements between small and/or medium-sized undertakings which have a limited impact on competition and consequently do not fall within the prohibition on restrictive agreements.
Many professions are still subject to cantonal regulations which limit the right of professionals to practise in other cantons (eg, architects, teachers, healthcare practitioners). Proposed amendments to the Internal Market Act aim to abolish these barriers and guarantee the right to carry out one's professional activity in the entire Swiss territory.
A European group formed by 18 professional football clubs has lodged a complaint with the Secretariat of the Federal Competition Commission against a FIFA regulation which obliges clubs to release players to their national teams for a selected number of matches organized by FIFA, without any financial compensation.
Recent Competition Act amendments which came into force on April 1 2004 empower the Federal Competition Commission (FCC) to impose direct sanctions on undertakings which participate in hardcore vertical or horizontal cartels, or which abuse their dominant position. Meanwhile, the FCC has cleared Swiss meat processing companies and old-age insurers of anti-competitive practices.
The Federal Competition Commission has conducted several in-depth investigations into M&A activity in the newspaper sector, and is examining possible abuses of competition law in the ticket sale and credit card sectors, among others. Swisscom has also been cleared of infringement in relation to advertisements attached to telephone connection invoices.
The Federal Competition Commission has issued an opinion in favour of the application of the Competition Act to the sale of therapeutic products to public hospitals. It has also opened an investigation against the members of the Association of Private Clinics of Geneva, which entered into an agreement on the charges for services provided to patients in private or semi-private divisions.
The Competition Act was recently amended in order to introduce a system of voluntary preliminary notification of potentially unlawful agreements and practices, and to remove specific notification thresholds in the media sector, among other things. Meanwhile, the Federal Competition Commission has been investigating acquisitions in the newspaper and supermarket sectors.
There have been a number of new appointments at the Federal Competition Commission (FCC), with a new chairman and vice-chairman taking up their posts in January this year. The FCC also warned recently that the adoption of the principle of international exhaustion of patent rights could favour parallel imports.
The Federal Competition Commission has held that the so-called 'non-discrimination clause' applied by a number of credit card companies in their contractual relationships with retailers amounts to abuse of a collective dominant position. The clause prevents retailers from passing the commissions generated by the use of credit cards onto credit cards users.
The Federal Competition Commission has published a communication on vertical agreements in the motor vehicle distribution sector which reflects EU regulation in this area. It has also cleared Coop's acquisition of grocery chain Epa, since there is sufficient competition in the food distribution market to curb Coop/Epa's activities.
The Federal Competition Commission has ruled that four construction companies which were invited to bid for a procurement contract had entered into an illicit price-fixing agreement. It has also imposed a number of conditions on Swisscom in order to foster competition on the telecommunications market.
The Swiss Federal Council has submitted to Parliament a draft amending the Competition Act. Among other things, the proposals allow for undertakings to be fined substantially for participation in hardcore cartels or abuse of a dominant position. As opposition to these changes is likely, the timing of the legislative process remains unclear.
In a recent communication the Federal Competition Commission defined the principles for the assessment of vertical agreements under the Competition Act. In addition, the commission's annual report stresses that it always seeks to reach amicable agreements with a view to eliminating unlawful restrictions.
The Appeal Commission has partly confirmed a Federal Competition Commission (FCC) decision in relation to fines imposed on Merck & Co and Rhône-Poulenc for carrying out a concentrative joint venture without prior FCC approval. The FCC has also commenced investigations into the petrol and debit card markets, among others.
The Federal Competition Commission has advised five cantons to lift advertising restrictions on health professionals. It has also recommended to the Federal Council that the life insurance market be opened to foreign competition, as it feels that such competition will force Swiss insurers to improve their services.
An expert report published by the Swiss Federal Department of Finance concludes that the imposition of direct sanctions in the case of serious competition infringements is not unconstitutional. This update considers this development, as well as relevant administrative and judicial decisions handed down in recent months.
The Swiss Supreme Court has confirmed that a concentration must be notified in Switzerland as soon as the thresholds set out in the Competition Act are reached, irrespective of whether the undertakings concerned have a presence in Switzerland.
In a recent case the Swiss Supreme Court confirmed that a foreign merger must be notified to the Competition Commission if the thresholds set out by the Competition Act are reached. By reversing an earlier decision of the Appeals Commission, the Supreme Court thus upheld Competition Commission practice.
The Federal Competition Commission recently published its annual report, which highlights its efforts to combat hard-core cartels and repress abuses of dominant positions. It is also pursuing ongoing investigations into anti-competitive practices in the asphalt, electricity and telecommunications industries.
A proposed amendment to the Competition Act which would empower the Federal Competition Commission to impose fines for anti-competitive practices is facing strong opposition from industrial circles and left-wing political organizations. Meanwhile, the commission has approved acquisitions in the banking and media sectors, among others.
The Federal Department for Economy is to prepare a proposal with a view to amending the Competition Act in a number of ways. Meanwhile, the Federal Competition Commission has cleared mergers in several fields, including the energy supply sector and the world of Formula One.
The Appeals Commission for competition matters has reversed the Swiss Competition Commission practice whereby a foreign merger must be reported to the Swiss authorities if each of two undertakings concerned had sales of over Sfr100 million in Switzerland in the year preceding the merger. An appeal is pending against the landmark decision.
The subjects of recent anti-competitive practice investigations launched by the Federal Competition Commission include members of the Association of Physicians of Zurich, pharmaceuticals distributors and Switzerland's three mobile telephone operators. The commission has also approved several mergers and acquisitions.
A number of important investigations have been completed into anti-competitive practices, including the cartel case involving Roche. But the Federal Competition Commission’s powers have been called into question. This update looks at recent developments in enforcement policy, and administrative and judicial decisions.
This update outlines some of the administrative and judicial decisions affecting mergers and acquisitions that were made between October 1999 and December 1999.
This newsletter deals with recent administrative and judicial decisions in Swiss competition law.