Switzerland, Lenz & Staehelin updates

Competition & Antitrust

Contributed by Lenz & Staehelin
First judicial review of dawn raid confirms easily met requirements
  • Switzerland
  • 24 June 2021

In March 2021 the Federal Administrative Court judicially reviewed a search warrant and confiscation order in the context of a dawn raid carried out by the Competition Commission. According to the court, this was the first such appeal ever. This was likely mainly due to the fact that the chances of success of such an appeal have always been considered low, which is confirmed by this decision.

Public contracting entities and distribution grid operators must publicly tender electricity purchases
  • Switzerland
  • 27 May 2021

In a formal recommendation, the Competition Commission has opined that Swiss public tender law applies to an electricity supply where a public contracting entity purchases electricity for its own internal consumption (eg, the supply of administrative buildings or public transport) and a distribution grid operator purchases electricity for further delivery to end customers. It is fair to say that competitive pressure among electricity suppliers will intensify in Switzerland.

New unilateral conduct rules significantly broadened
  • Switzerland
  • 01 April 2021

Parliament recently approved a counterproposal to the Fair Price Initiative, thereby revising the Cartel Act and adopting the concept of 'relative market power'. Under the new law, prohibitions previously applicable only to dominant companies will be extended to companies with relative market power. The new law also introduces a geo-blocking ban.

New law prohibits online booking platforms from using price-parity clauses
  • Switzerland
  • 18 March 2021

The new law amending the Federal Act against Unfair Competition states that unfair competition occurs if an operator of an online platform for booking accommodation services uses general terms and conditions that restrict the pricing of accommodation facilities by means of price-fixing clauses, particularly price-parity clauses. The bill has been criticised for having been initiated not in the interest of consumers, but rather in the interest of the hotel industry, thus serving individual business interests.

ComCo's assessment of state aid for COVID-19-troubled airlines
  • Switzerland
  • 11 February 2021

Unlike EU competition law, Switzerland has no actual state aid regime. However, in the area of air transport, there is an exception. Until now, this provision had little significance in practice. Due to the ongoing downturn in air transport in light of the COVID-19 pandemic and the financial difficulties resulting therefrom, this is now changing and a practice regarding its application and interpretation from a Swiss perspective is being established for the first time.


Employment & Immigration

Contributed by Lenz & Staehelin
World's highest minimum wage: Geneva introduces Sfr23 per hour minimum wage
  • Switzerland
  • 25 November 2020

A referendum recently approved the '23 frs, c'est un minimum' ('23 Swiss francs is a minimum') initiative, introducing a minimum wage of Sfr23 (approximately £19, $25 or €22) per hour in the canton of Geneva, which has applied since 1 November 2020. The Cantonal Office for Work Inspection and Labour Relations may issue penalties in the event of non-compliance with the new minimum wage, including administrative fines of up to Sfr30,000.

Paternity leave and its impact on companies
  • Switzerland
  • 14 October 2020

According to Organisation for Economic Cooperation and Development (OECD) statistics, Switzerland is one of the seven OECD member states which does not grant fathers paid leave. Parliament's proposal regarding paternity leave was recently passed by referendum and as a result fathers will be entitled to two weeks' paternity leave from 1 January 2021. This article explains the scope and concrete modalities of this new social insurance scheme and its impact on companies in Switzerland.

Conversion in Switzerland as hindrance to return of asylum seekers
  • Switzerland
  • 13 May 2020

The European Court of Human Rights (ECtHR) recently found Switzerland in breach of the European Convention on Human Rights for ordering the return to Afghanistan of an asylum seeker who had, according to the Swiss authorities, converted to Christianity after arriving in Switzerland. The ECtHR confirmed that being forced to conceal a personal conviction or a characteristic inextricably linked to an individual's personality may lead to the recognition of refugee status.

No deal? Post-Brexit admission of British nationals to Swiss labour market
  • Switzerland
  • 18 October 2019

The Agreement on Admission to the Labour Market for a Temporary Transitional Period following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons will provide facilitated access to the labour market for British nationals in Switzerland and for Swiss nationals in the United Kingdom after Brexit. The agreement will serve as a transition regime in the event of a no-deal Brexit and would be entered into for a limited period until 31 December 2020.

Stricter language skill requirements for foreign nationals
  • Switzerland
  • 07 June 2019

The Foreign Nationals Act has been renamed the Foreign Nationals and Integration Act, with effect from 1 January 2019. The Foreign Nationals and Integration Act has revised the earlier provisions and introduced new ones to encourage and support foreign nationals' integration into Switzerland. Further, the act now includes provisions relating to the integration of non-EU nationals in Switzerland.


Energy & Natural Resources

Contributed by Lenz & Staehelin
Public contracting entities and distribution grid operators must publicly tender electricity purchases
  • Switzerland
  • 24 May 2021

In a formal recommendation, the Competition Commission has opined that Swiss public tender law applies to an electricity supply where a public contracting entity purchases electricity for its own internal consumption (eg, the supply of administrative buildings or public transport) and a distribution grid operator purchases electricity for further delivery to end customers. It is fair to say that competitive pressure among electricity suppliers will intensify in Switzerland.

Capital cost rates for electricity supply, renewable energy production and high-pressure natural gas networks
  • Switzerland
  • 05 April 2021

The Federal Electricity Supply Act regulates the fee structure to be applied by electricity suppliers when delivering electricity to end consumers. The federal government adjusts this fee structure annually based on a pre-defined calculation method. An important element of this calculation method is the capital cost rates. The Federal Department of the Environment, Transport, Energy and Communications recently signalled that the method for calculating these capital cost rates is under review.

New transparency obligations for commodity companies
  • Switzerland
  • 22 February 2021

As of 1 January 2021, companies domiciled in Switzerland that are active in the extraction of raw materials must disclose payments to state authorities or government officials of Sfr100,000 or more per financial year. The new transparency provisions aim to foster responsible behaviour and create a uniform framework by aligning the Swiss provisions with existing standards under EU and US legislation. The new regulations will apply for the first time for the financial year 2022.

Regulatory initiatives to boost sustainable finance and transition to clean energy
  • Switzerland
  • 21 December 2020

Federal authorities have concluded that further efforts are needed for the Swiss financial sector to play its part in achieving Switzerland's climate targets, despite numerous financial institutions now holding stakes in companies that are developing clean energies and e-mobility. As such, there is a developing trend of financial institutions and products coming to the regulatory forefront in terms of energy sustainability.

ElCom points to possible danger to security of supply
  • Switzerland
  • 26 October 2020

The revision of the Electricity Supply Act is in full swing. The purpose of this revision is to adapt the act to an electricity market that has changed considerably since its introduction. The aim is to close existing loopholes in the law and to examine new regulations based on the changing conditions in the electricity industry. One thing seems certain: the revision of the Electricity Supply Act is far from complete.


Litigation

Contributed by Lenz & Staehelin
Complying with professional conduct rules for lawyers – a balancing act
  • Switzerland
  • 08 June 2021

The Swiss Bar Association (SAV) Code of Professional Conduct contains provisions on how lawyers should interact with clients, the courts and professional colleagues. A recent Federal Supreme Court decision illustrates the forms which violations of the SAV Code of Professional Conduct can take. In this judgment, the highest Swiss court decided that such a violation can take the form of "active interference with the court's establishment of the truth".

Life sciences battlefields – hot litigation topics
  • Switzerland
  • 16 March 2021

Switzerland is home to a globally unique life sciences cluster. In a country where 33% of export goods are chemical-pharmaceutical products, it is unsurprising that patents play an important role. However, a strong patent system also needs strong enforcement means. This article provides a brief overview of the Swiss patent litigation system and highlights some trends in life sciences patent litigation.

High threshold for admission of evidence obtained by private parties in criminal proceedings
  • Switzerland
  • 03 November 2020

In principle, Swiss law does not allow audio and video recordings to be made without the consent of the persons concerned. Consequently, such materials are generally of no avail in criminal proceedings. However, in two recent decisions the Federal Supreme Court dealt with certain exceptions to this rule and confirmed a clear-cut distinction as to when such recordings should be admitted.

No review by Swiss courts of government's approach to climate change
  • Switzerland
  • 30 June 2020

The Supreme Court has held that an association of elderly women lacks standing to request the Swiss courts to review Switzerland's approach to meeting the Paris Agreement targets to mitigate the effects of climate change. The court's decision was seemingly motivated by the broad means available to individuals and groups to engage in the political process in Switzerland. The decision casts doubt on the future of climate change litigation which questions the approach taken by the Swiss government.

Applicability of clausula rebus sic stantibus to banks' refusal to release gold in kind
  • Switzerland
  • 12 May 2020

The Federal Supreme Court recently decided the fate of a contract between a bank client and his Swiss banks, which had refused to release gold from the client's bank deposit in kind. This decision prompted the court to outline the requirements for the general applicability of clausula rebus sic stantibus and its specific use in cases where a foreign mandatory law issued after a banking contract's conclusion affects the relationship between Swiss banks and their foreign clients.


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