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.
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.
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.
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'.
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.
In the event of a no-deal Brexit, British nationals who take up residence in Switzerland after 29 March 2019 would not benefit from any rights of protections currently granted under the Agreement on the Free Movement of Persons and would thus be considered non-EU nationals. Under Switzerland's ordinary immigration regime, non-EU nationals generally have no right to obtain a Swiss residence and work permit, and Swiss immigration authorities have wide discretionary power when reviewing permit applications.
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.
Under the Civil Procedure Code, the Swiss courts usually take evidence only after the parties have fully pleaded all particulars. The taking of evidence is often preceded by multiple exchanges of written submissions; however, in certain cases, it may be unreasonable to wait until the proceedings have fully developed to take certain evidence. For such cases, Swiss law allows parties to request the so-called 'precautionary taking of evidence'. The Zurich Commercial Court recently issued a decision on one such request.
According to a new Federal Supreme Court decision, securing an advantageous place of jurisdiction in Switzerland (so-called 'forum running') in an international dispute is of sufficient interest for an action seeking a negative declaratory judgment. This new precedent enables parties domiciled in Switzerland to anticipate foreign proceedings initiated by a counterparty by filing an action for a negative declaratory judgment to drag the case before a court in Switzerland.
The Federal Supreme Court recently ruled on at which point the statute of limitation starts to run and what its duration should be. It found that the statute of limitation applicable to the claim for restitution was 10 years and that it started to run on the receipt of each payment by the agent. The issue of statutory interest remained undecided, but now appears much less controversial
The Federal Supreme Court recently clarified that the criminal liability of enterprises is not a strict liability, but rather requires proof of a criminal offence in each case. The decision defines the limits of criminal law applicable to enterprises, particularly in respect of money laundering, and clarifies that the genuine or cumulative criminal liability of enterprises is not a strict liability for organisational deficiencies.