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09 May 2019
The Swiss Competition Commission (ComCo) publishes case reports, decisions and other communications quarterly in Droit et politique de la concurrence (DPC)/Recht und Politik des Wettbewerbs (RPW). With respect to preliminary investigations (Article 28 of the Federal Act on Cartels and other Restraints of Competition (the Cartel Act)), the ComCo usually publishes final reports in DPC/RPW if:
In this context, the ComCo must not reveal any business secrets (Article 25(4) of the Cartel Act). To that end and prior to publication, the ComCo submits a draft of its final report to the undertakings concerned by the preliminary investigation, requesting them to redact the content which they consider to be business secrets.
An undertaking concerned by the preliminary investigation at issue submitted its requests to redact the final report, which were not all agreed by the ComCo. The undertaking appealed the ComCo's decision to publish the preliminary investigation's final report (without considering all of its redaction requests).
On 30 January 2019 the appeal was decided by the Federal Administrative Court (FAC) (B-5117/2016).
The FAC held that the ComCo'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.
Accordingly, the ComCo may publish a preliminary investigation's final report only if the following conditions are met:
Within these boundaries, the ComCo benefits from a degree of leeway in deciding whether to publish a preliminary investigation's final report.
In the case at hand, the FAC considered that the public interest in publishing (ie, ensuring legal certainty for market participants, transparency of the administration's activities and cantonal and federal authorities' need for information) largely prevailed over the private interest of an undertaking in maintaining its good reputation.
Finally, the FAC decided that the ComCo's decision to publish the final report had been lawful, but enjoined the ComCo to:
This decision provides a legal precedent for companies to request more extensive redactions of final reports that the ComCo has decided to publish (ie, redactions not limited to business secrets, but also personal data). Companies may request anonymisation of final reports on the basis of the Federal Act on Data Protection. In certain exceptional cases, the ComCo's decision to publish a final report may be challenged. Further, although this decision relates only to the publication of preliminary investigation final reports, the same reasoning is likely to apply to other types of decision or content that are published in DPC/RPW.
However, it should be noted that:
For more information on this topic please contact Benoît Merkt or Sevan Antreasyan at Lenz & Staehelin by telephone (+41 58 450 70 00) or email (email@example.com or firstname.lastname@example.org). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
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