Latest updates
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.
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.
