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.
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.
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.
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.
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.
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.
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.
Under the Cartel Act, a merger filing is generally required when the relevant turnover thresholds pursuant to Article 9(1) of the act are met. However, in addition to these thresholds, the act provides for a filing obligation based on a dominant market position. As a result of legal uncertainty, a leading media group recently asked the Secretariat of the Competition Commission whether its intended acquisition of a small media agency would trigger a merger filing obligation even if the turnover thresholds were clearly not met.
The Federal Administrative Court (FAC) recently confirmed that the Swiss Competition Commission's decision to publish the contents of a preliminary investigation's final report must comply with the Federal Act on Data Protection and the Cartel Act. In the case at hand, the FAC held that the public interest in publishing largely prevailed over the private interest of an undertaking in maintaining its good reputation.
In a recent bid-rigging investigation, the Federal Administrative Court held that assessing the procedural role of a witness or company representative must be based on the circumstances at the time of the interrogation. The court found that interrogation of a witness is permissible only if it concerns purely factual information that could have no direct incriminating effect on the complainant with regard to a possible violation of competition law.
The Secretariat of the Swiss Competition Commission recently issued advice in respect of Article 23(2) of the Cartel Act to two shareholders in a jointly controlled joint venture. The advice clarifies that joint control is given when the parent companies must agree on all important matters relating to the joint venture. Where several parent companies have unequal stakes in a company, minority shareholders must have a right to veto decisions that are essential to the strategic commercial behaviour of the joint venture.
In April 2018 the Swiss Competition Commission (ComCo) issued a decision concerning alleged anti-competitive agreements in the construction industry that was broadly covered in the Swiss media. The case demonstrates that there is a risk that ComCo will try to at least partially impose procedural costs on associations due to supporting activities. Associations and companies must ensure that association activities comply with what is allowed under Swiss competition law.
The Secretariat of the Competition Commission recently published formal advice to cemsuisse regarding information exchange. The advice applies the criteria of competition law regarding information exchange in a highly concentrated market with homogeneous products. The decision sheds some light on the Secretariat's possible priorities when applying the criteria. However, it includes a few far-reaching assumptions and does not test all of the criteria consistently.
A recent Federal Court judgment regarding parallel imports between Swiss company Gaba and Austrian company Gebro deals with the core principles of the competition law assessment of licence and distribution agreements. It is a paramount judgment with significant implications, given that it changes the practice and tightens the competition law assessment of licence and distribution agreements.
The rise of the digital market in Switzerland has led to lasting changes in consumer behaviour, with over 62% of Swiss consumers having used the Internet to buy goods and services. The Competition Commission has investigated and published several leading cases relating to online sales and internet platforms and has also revised its guidelines on vertical restraints to hold that online sales of goods and services are generally considered passive sales.
The Competition Commission recently issued a ruling in which an investigation into vertical infringements of competition law was the subject of an amicable settlement with the competition authority. Even though this is not a leading case with regard to the application of material law, it is a good opportunity to reflect on whether the application of leniency regimes to vertical cases is reasonable in general and whether full immunity could be justified in particular.
Proceedings were recently initiated for a popular initiative calling for amendments to the Federal Constitution and competition law. The initiative requested changes to the Cartel Act in order to enforce the possibility of non-discriminatory procurement of goods and services abroad by Swiss purchasers on the basis of the introduction of the concept of 'relative market dominance'. The so-called 'fair-price initiative' is backed by various consumer associations
The Swiss courts have recently issued several decisions regarding access to information from antitrust proceedings. These decisions are particularly relevant for potential civil damages claims, where access to information is often crucial for the success of the claim. Competition authorities must be careful not to harm competition or future procedures by disclosing sensitive business secrets of entities involved in antitrust proceedings, particularly leniency applicants.
The Federal Administrative Court recently issued a judgment regarding a Competition Commission penalty decision against digital camera manufacturer Nikon. The decision imposes a restrictive regime against international distribution agreements and will lead to uncertainties when setting up international distribution systems. In particular, the broad scope of territorial application may raise concerns, given that in theory distribution agreements around the world could affect the Swiss market.
The Federal Supreme Court recently ruled on a Competition Commission (ComCo) decision regarding a production and distribution licence agreement. ComCo concluded that the licence agreement prohibited the export of products into Switzerland. Once the written conclusions of the judgment become available, it may be more difficult for companies to argue that certain agreements do not infringe competition law.