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.
In March 2018 the Swiss Parliament adopted revisions to the international insolvency provisions of the Private International Law Act which aimed to simplify the country's insolvency and restructuring regime. Under the new rules, courts will be able to authorise transfers of assets located in Switzerland without initiating ancillary bankruptcy proceedings. The newly enacted provisions are likely to enter into force on 1 January 2019.
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 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.