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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.