Lenz & Staehelin updates

Capital cost rates for electricity supply, renewable energy production and high-pressure natural gas networks
Lenz & Staehelin
  • Energy & Natural Resources
  • 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 unilateral conduct rules significantly broadened
Lenz & Staehelin
  • Competition & Antitrust
  • 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
Lenz & Staehelin
  • Competition & Antitrust
  • 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.

Life sciences battlefields – hot litigation topics
Lenz & Staehelin
  • Litigation
  • 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.

New transparency obligations for commodity companies
Lenz & Staehelin
  • Energy & Natural Resources
  • 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.

ComCo's assessment of state aid for COVID-19-troubled airlines
Lenz & Staehelin
  • Competition & Antitrust
  • 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.

Parliament agrees on stricter concept of market power
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 14 January 2021

Parliament is currently debating the so-called 'fair price initiative' and an indirect counter-proposal by the government, both of which aim to tighten the Cartel Act. Among other new provisions, the concept of relative market power will be introduced to combat foreclosure of the Swiss market and price discrimination against Swiss corporate customers. Both chambers of Parliament have agreed that the concept of relative market power will apply not only to suppliers, but also to customers.

Regulatory initiatives to boost sustainable finance and transition to clean energy
Lenz & Staehelin
  • Energy & Natural Resources
  • 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.

Federal Administrative Court adopts broad interpretation of merger notification obligation for dominant undertakings
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 10 December 2020

Under Swiss competition law, a proposed concentration may trigger a mandatory pre-merger notification obligation if one of the undertakings concerned has been held to be dominant, irrespective of the statutory turnover thresholds. The scope of this provision is controversial. The Federal Administrative Court has now adopted a broad interpretation of the merger notification obligation for dominant undertakings, thereby exacerbating the issues associated with this provision.

World's highest minimum wage: Geneva introduces Sfr23 per hour minimum wage
Lenz & Staehelin
  • Employment & Immigration
  • 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.

High threshold for admission of evidence obtained by private parties in criminal proceedings
Lenz & Staehelin
  • Litigation
  • 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.

ElCom points to possible danger to security of supply
Lenz & Staehelin
  • Energy & Natural Resources
  • 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.

Paternity leave and its impact on companies
Lenz & Staehelin
  • Employment & Immigration
  • 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.

ComCo decision strengthens shift towards integrated energy suppliers
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 07 September 2020

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.

Dieselgate: Foundation for Consumer Protection suit not considered on its merits
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 20 August 2020

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.

ComCo opens up gas market in central Switzerland
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 06 July 2020

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.

No review by Swiss courts of government's approach to climate change
Lenz & Staehelin
  • Litigation
  • 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.

Secretariat of ComCo advises on obligation to notify concentration
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 28 May 2020

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.

Strengthening of domestic renewable energies and liberalisation of electricity market
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 18 May 2020

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.

Conversion in Switzerland as hindrance to return of asylum seekers
Lenz & Staehelin
  • Employment & Immigration
  • 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.

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