Lenz & Staehelin updates

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.

Applicability of clausula rebus sic stantibus to banks' refusal to release gold in kind
Lenz & Staehelin
  • Litigation
  • 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.

COVID-19 crisis: guidelines for dealing with antitrust risk
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 23 April 2020

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.

Liking or sharing defamatory Facebook posts can be unlawful
Lenz & Staehelin
  • Litigation
  • Switzerland
  • 07 April 2020

The Supreme Court recently issued a judgment concerning 'likes' and 'shares' of defamatory posts on Facebook. The Supreme Court held that liking and sharing posts can potentially amount to punishable defamation. However, persons accused of defamation have the right to prove that such statements were true or that they could have believed in good faith that they were true, which may excuse such actions under the Criminal Code.

New regulations on trading with natural resources
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 24 February 2020

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.

Federal Supreme Court examines margin squeeze under Swiss competition law
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 20 February 2020

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.

Low fine for vertical price fixing against Swiss ski manufacturer after leniency application
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 14 November 2019

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.

Government confirms proposal to liberalise electricity market
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 28 October 2019

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.

No deal? Post-Brexit admission of British nationals to Swiss labour market
Lenz & Staehelin
  • Employment & Immigration
  • 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.

Broad jurisdiction for avoidance claims (actio pauliana) – also for Swiss defendants?
Lenz & Staehelin
  • Litigation
  • Switzerland
  • 01 October 2019

As a recent European Court of Justice opinion is likely to be adopted by Swiss legal doctrine and precedent, parties domiciled in Switzerland may be targeted by avoidance claims in another signatory state of the Lugano Convention based on a contract to which they were not a party but that was merely concluded between the debtor and a creditor.

ComCo reduces antitrust fines due to damages compensation paid to cartel victims
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 26 September 2019

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.

Linked ETSs to benefit energy-intensive industries
Lenz & Staehelin
  • Energy & Natural Resources
  • Switzerland
  • 09 September 2019

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'.

Federal Administrative Court rules on abuse of dominant position
Lenz & Staehelin
  • Competition & Antitrust
  • Switzerland
  • 15 August 2019

The Federal Administrative Court recently upheld a Sfr7 million fine issued by the Swiss Competition Commission in 2010 against SIX Group regarding the processing of credit and debit card payments. This long-awaited decision dealt with numerous legal questions of relevance to dominance cases; however, it is not yet final, as an appeal is pending before the Federal Supreme Court.

Stricter language skill requirements for foreign nationals
Lenz & Staehelin
  • Employment & Immigration
  • 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.

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