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ICN Anti-Cartel Enforcement Template

ANTI-CARTEL ENFORCEMENT TEMPLATE

CARTELS WORKING GROUP Subgroup 2: Enforcement Techniques

Switzerland Updating of the template: 17/10/2022

ICN ANTI-CARTEL ENFORCEMENT TEMPLATE

IMPORTANT NOTES:

This template is intended to provide information for the ICN member competition agencies about each other’s legislation concerning anti-competitive practices, particularly hardcore cartels. At the same time the template supplies information for businesses participating in cartel activities about the rules applicable to them; moreover, it enables businesses and individuals which suffer from cartel activity to get information about the possibilities of enforcement of their rights in private law in one or more jurisdictions.

Reading the template is not a substitute for consulting the referenced statutes and regulations. This template should be a starting point only.

Information on the law relating to cartels

A Does your law or case The Cartel Act does not use the term “cartel”, but it uses the terms

law define the term “agreements affecting competition” instead: “Agreements affecting “cartel”? competition are binding or non-binding agreements and concerted practices between undertakings operating at the same or at different If not, please indicate levels of production which have a restraint of competition as their the term you use object or effect” (Article 4 (1) Cartel Act). instead.

B. Does your legislation or Yes. case law distinguish The following (horizontal) cartel behaviour is presumed to be very between very serious serious (hardcore cartels, Article 5(3) Cartel Act): cartel behaviour

  • agreements to fix prices (“hardcore cartels” –

  • agreements to limit quantities e.g.: price fixing, market

  • agreements to allocate markets sharing, bid rigging or production or sales The following vertical agreements are presumed to be very serious quotas1) and other types (Article 5(4) Cartel Act): of “cartels”? - vertical agreements regarding fixed or minimum prices

  • vertical agreements contained in distribution contracts regarding the allocation of territories to the extent that sales by other distributors into these territories are not permitted. For other agreements, no such presumption exists, and they are evaluated on a case-by-case analysis.

C Scope of the prohibition The aforementioned (2.B.) horizontal hardcore cartels are

of hardcore cartels: presumed to eliminate effective competition. If there is proof that such agreements only significantly restrict competition in a market (and do not as presumed eliminate it) they are deemed to be justified on grounds of economic efficiency if they: 1) are necessary in order to 2) - reduce production or distribution costs, or

  • improve products or production processes, or

  • promote research into or dissemination of technical or professional know-how, or

  • exploit resources more rationally; and

In some jurisdictions these types of cartels – and possibly some others – are regarded as particularly serious violations. These types of cartels are generally referred to as “hardcore cartels”. Hereinafter this terminology is used.

3) do not enable the parties involved under any circumstances to eliminate effective competition.

D Is participation in a No, the Cartel Act operates, though, on the presumption that

hardcore cartel illegal hardcore cartels (2.B.) lead to the elimination of effective per se2? competition. If this presumption cannot be refuted, a justification based on grounds of economic efficiency is not possible and the agreement is deemed illegal.

E Is participation in a The participation in a hardcore cartel is in principle an

hardcore cartel a civil or administrative offence. A person affected by an unlawful restraint of administrative or competition is entitled to file a civil action. criminal offence, or a Potentially the members of a bid-rigging Cartel could be liable under combination of these? the Swiss Criminal Code. Courts in Switzerland have not answered the question yet whether bid-rigging could be a criminal offence.

Investigating institution(s)

A Name of the Secretariat of the Swiss Competition Commission

agency, which investigates cartels:

B Contact details of Competition Commission Secretariat

the agency: Hallwylstrasse 4 CH-3003 Bern Tel.: +41 58 462 20 40 info@weko.admin.ch Online contact form: https://www.weko.admin.ch/weko/en/home/kontakt/kontakt.html Website: https://www.weko.admin.ch/weko/en/home.html Available in: German, French, Italian and English

C Information point Whistle-blowers:

for potential https://www.weko.admin.ch/weko/de/home/anzeigen/whistleblowing.html complainants: Leniency applicants: https://www.weko.admin.ch/weko/de/home/anzeigen/selbstanzeigebonusregelung.html Others: Information about unlawful practices: https://www.weko.admin.ch/weko/de/home/anzeigen/kontakt.html,

Suspicion of bid rigging: https://www.weko.admin.ch/weko/de/home/anzeigen/kontakt1.html and

Information about relative market power:

For the purposes of this template the notion of ‘per se’ covers both 'per se' and 'by object', as these terms are synonyms used in different jurisdictions.

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D Contact point Whistle-blowers: Email: whistleblowing@weko.admin.ch

where complaints Leniency applicants: Email: selbstanzeige@weko.admin.ch can be lodged: Bid rigging: Email: submissionsabrede@weko.admin.ch Others: https://www.weko.admin.ch/weko/de/home/kontakt/kontakt.html

E Are there other The federal or state (cantonal) police assists the Secretariat of the

authorities which Competition Commission during searches of premises may assist the For example: https://www.fedpol.admin.ch/fedpol/de/home.html investigating agency? If yes, The price surveillant may refer cases to the Secretariat of the Competition please name the Commission authorities and the type of https://www.preisueberwacher.admin.ch/pue/de/home.html assistance they provide.

Decision-making institution(s)3 [to be filled in only if this is different from the investigating agency]

A Name of the Competition Commission

agency making decisions in cartel cases:

B Contact details of Competition Commission

the agency: Hallwylstrasse 4 CH-3003 Bern Tel.: +41 58 462 20 40 info@weko.admin.ch Online contact form: https://www.weko.admin.ch/weko/en/home/kontakt/kontakt.html Website: https://www.weko.admin.ch/weko/en/home.html Available in: German, French, Italian and English

C Contact point for See above (4.B.)

questions and consultations:

D Describe the role The Secretariat of the Swiss Competition Commission opens an

of the investigation in consultation with a member of the presiding body of the investigating Competition Commission or can be mandated with an investigation by the agency in the Swiss Competition Commission or the Federal Department of Economics process leading to Affairs, Education and Research. The Secretariat conducts the the sanctioning of investigation and issues together with a member of the presiding body any the cartel conduct. procedural decisions. It carries out searches of premises and questions the

Meaning: institution taking a decision on the merits of the case (e.g. prohibition decision, imposition of fine, etc.)

parties. It submits motions for decisions of the Swiss Competition Commission on which the parties may comment. They may include sanctions and measures to re-establish workable competition. The Secretariat of the Swiss Competition Commission may negotiate an amicable settlement which is subject to the approval of the Swiss Competition Commission.

E What is the role of Potentially bid-rigging cartels could be criminal offences. Courts have not

the investigating answered yet whether the participants of a bid-rigging cartel are liable agency if cartel under the Swiss Criminal Code. In Switzerland the body of public cases belong prosecution enforces the Swiss Criminal Code. under criminal proceedings?

Handling complaints and initiation of proceedings

A Basis for initiating The Secretariat may conduct preliminary investigations on its own initiative

investigations in (ex officio), following an undertaking's complaint or on information received cartel cases: from third parties. Additionally, the Secretariat may in consultation with a member of the presiding body of the Competition Commission open an investigation without prior preliminary investigations, e.g. following a leniency application.

B Are complaints No. However, the Secretariat provides practical guidelines and an online

required to be form on its website. made in a specific Practical guidelines: form (e.g. by phone, in writing, https://www.weko.admin.ch/weko/de/home/rechtliches_dokumentation.html on a form, etc.)? Online forms: https://www.weko.admin.ch/weko/de/home/anzeigen.html Available in German, French, Italian and some also in English The Secretariat asks the complainants to substantiate their claims more or less thoroughly, depending on whether the complaint is filed by a citizen, a whistle-blower or an undertaking.

C Legal There are no specific legal requirements. Any person or undertaking may

requirements for file a complaint with the Swiss Competition Commission lodging a complaint against a cartel:

D Is the investigating No, the Secretariat is not obliged to take action on each complaint, it has a

agency obliged to limited discretionary power to refuse to investigate complaints on minor take action on breaches of the Swiss Cartel Act. each complaint that it receives or does it have discretion in this respect?

E If the agency The Secretariat is not required to adopt such a decision (decision of the

intends not to Swiss Federal Court 2A.74/2004 resp. BGE 130 II 521, E. 2.7.3). pursue a The Secretariat informs the complainants about the reasons why it does complaint, is it not intend to pursue a complaint. required to adopt a

decision addressed to the complainant explaining its reasons?

F. Is there a time limit No, there is no such time limit. counted from the date of receipt of a complaint by the competition agency for taking the decision on whether to investigate or reject it?

Leniency policy4

A What is the official name There is no specific name for the leniency policy. The Ordinance of

of your leniency policy (if 12 March 2004 on Sanctions imposed for Unlawful Restraints of any)? Competition (Cartel Act Sanctions Ordinance, CASO) regulates the conditions and the procedure for obtaining complete or partial immunity from sanctions. It is publicly available and can be found on the following website: https://www.fedlex.admin.ch/eli/cc/2004/175/de

Furthermore the Swiss Competition Commissions’ website provides a leniency application form as well as an explanatory leaflet: https://www.weko.admin.ch/weko/de/home/anzeigen/selbstanzeigebonusregelung.html

B Does your jurisdiction Yes. The competition commission grants an undertaking full

offer full leniency as well immunity from sanctions, if it provides information that enables the as partial leniency (i.e. competition authority to open proceedings, or if it provides evidence reduction in the sanction that enables the competition authority to establish a hardcore / fine), depending on the infringement of competition. case? The Swiss Competition Commission shall reduce the sanction up to

per cent if an undertaking voluntarily cooperates in proceedings and if it terminates its participation in the infringement of competition law no later than at the time at which it submits evidence. The reduction depends on the importance of the undertaking’s contribution to the success of the proceedings. The Swiss Competition Commission can reduce the amount of the sanction up to 80 per cent if an undertaking voluntarily provides information or submits evidence on further unlawful restriction of competition.

C. Who is eligible for full Only the first applicant is eligible for full immunity.

For the purposes of this template the notion of ‘leniency’ covers both full leniency and a reduction in the sanction or fines. Moreover, for the purposes of this template terms like ‘leniency’ ‘amnesty’ and ‘immunity’ are considered as synonyms.

leniency? The rest of the applicants however can benefit from a partial reduction as mentioned in 6.B.

D Is eligibility for leniency The eligibility for leniency does not depend on whether the authority

dependent on the has already opened proceedings. If after the opening an enforcing agency having undertaking provides evidence that enables the authority to either no knowledge of establish an infringement of the Cartel Act it is still eligible for the cartel or insufficient leniency. There is no specific date for the participants to come knowledge of the cartel forward, although, if the competition authority already possesses to initiate an sufficient evidence to prove the infringement, immunity from a investigation? sanction cannot be granted anymore. Therefore, it is recommendable for undertakings to apply for leniency in the early In this context, is the stages of the proceedings. date (the moment) at which participants in the cartel come forward with information (before or after the opening of an investigation) of any relevance for the outcome of leniency applications?

E Who can be a beneficiary Only businesses can benefit from the leniency program. But the

of the leniency program Swiss Competition Commission only has a legal basis for (individual / sanctioning businesses. businesses)?

F What are the conditions As mentioned above (6.B.), the Swiss Competition Commission

of availability of full grants an undertaking full immunity from a sanction, if it provides leniency: information that enables the competition authority to open proceedings, or if it provides evidence that enables the competition authority to establish a hard core infringement of competition. Furthermore, full immunity from a sanction can only be granted if the undertaking: a. has not coerced any other undertaking into participating in the infringement of competition and has not played the instigating or leading role in the relevant infringement of competition; b. voluntarily submits to the competition authority all available information and evidence relating to the infringement of competition that lies within its sphere of influence; c. continuously cooperates with the competition authority throughout the procedure without restrictions and without delay; d. ceases its participation in the infringement of competition upon submitting its voluntary report or upon being ordered to do by the competition authority.

As mentioned above (6.D), full immunity can only be granted if the competition authority does not already possess sufficient evidence to prove the infringement.

G What are the conditions The Swiss Competition Commission can reduce the sanction up to

of availability of partial 50 per cent if an undertaking voluntarily cooperates in proceedings leniency (such as and if it terminates its participation in the infringement of competition reduction of sanction / law no later than at the time at which it submits evidence. The fine / imprisonment): reduction depends on the importance of the undertaking’s contribution to the success of the proceedings. The Swiss Competition Commission can reduce the amount of the

sanction up to 80 per cent if an undertaking voluntarily provides information or submits evidence on further unlawful restriction of competition.

H Obligations for the The undertaking has to continuously and voluntarily cooperate with

beneficiary after the the competition authority throughout the procedure without leniency application has restrictions and without delay. It has to terminate its participation in been accepted: the infringement no later than at the time at which it submits evidence. The reduction depends on the importance of the undertaking’s contribution to the success of the proceedings.

I Are there formal There are no formal requirements. I.e. an undertaking can deposit

requirements to make a its leniency application in form of a verbal statement which is leniency application? subsequently transcribed or it can directly be submitted in written. An undertaking may even apply for leniency submitting anonymous information in the first step. Regarding its content, the leniency application shall contain all necessary information on the undertaking itself, on the nature of the reported infringement of competition, on the other undertakings participating in the infringement of competition and on the affected or relevant markets. J. Are there distinct The Secretariat acknowledges receipt of the leniency application, procedural steps within indicating the date and time of receipt. It informs the applicant in the leniency program consultation with a member of the presiding body of a) the extent to which it regards the requirements for complete immunity from the sanction as fulfilled; b) any additional information that the reporting undertaking shall submit and in the case of an anonymous voluntary report c) the period within which the undertaking must disclose its identity. The Competition Commission decides whether to grant complete immunity from the sanction.

K At which time during the As mentioned above, the Swiss Competition Commission may grant

application process is an undertaking full immunity. The applicant is therefore not certain the applicant given with respect to its eligibility for leniency until the final decision. certainty with respect to However, the Secretariat may inform the applicant in consultation its eligibility for leniency, with a member of the presiding body at an early stage of the and how is this done? proceeding of the extent to which it regards the requirements for complete immunity from the sanction as fulfilled. Furthermore, it will propose the Swiss Competition Commission in its motion to grant full immunity to the applicant, which gives the applicant a high degree of certainty with respect to its eligibility for leniency.

L What is the legal basis The Swiss Competition Commission has the power to grant leniency

for the power to agree to and takes a formal decision (Art. 11 (1) CASO). grant leniency? Is The Secretariat may reach an amicable settlement with the parties. leniency granted on the Therein, it may offer the prospect of full or partial immunity. The basis of an agreement or amicable settlement is, however, subject to approval by the Swiss is it laid down in a Competition Commission. Solely the Swiss Competition (formal) decision? Who Commission has the power to grand leniency in a formal decision. within the agency decides about leniency applications?

M Do you have a marker5 Yes. Markers can be set either through the online form on

system? If yes, please https://www.weko.admin.ch/weko/de/home/anzeigen/selbstanzeigedescribe it. bonusregelung/e-marker.html or under the following email address: selbstanzeige@weko.admin.ch. The Secretariat acknowledges receipt of the leniency application automatically, indicating the date and time of receipt. A leniency application via telephone is not possible. The Secretariat informs the applicant of any additional information that the applicant shall submit and in the case of an anonymous leniency application of the period within which the undertaking must disclose its identity. It finally informs the applicant in consultation with a member of the presiding body of the extent to which it regards the requirements for complete immunity from the sanction as fulfilled.

N Does the system provide Yes, the reduction amounts to up to 80 per cent of the sanction if an

for any extra credit6 for undertaking voluntarily provides information or submits evidence on disclosing additional further infringements. violations?

O Is the agency required to There is no express obligation to keep the identity of the leniency

keep the identity of the applicant confidential, but there is a general legal base that makes it beneficiary confidential? possible for the agency to keep it confidential (cf. Art. 27 (1) APA). If yes, please elaborate. In practice, the Secretariat keeps the leniency applicant’s identity confidential as long as possible (cf. the explanatory note and form of the Secretariat regarding the leniency application [https://www.weko.admin.ch/weko/de/home/anzeigen/selbstanzeigebonusregelung.html]). Even if the final decision does not reveal the name of the leniency applicant, it is not excluded that a party familiar with the facts of the case may deduce its identity from the context.

P Is there a possibility of There is only a possibility to appeal against the final decision if the

appealing an agency’s Commission rejected a leniency application. decision rejecting a leniency application?

Q Contact point where a Competition Commission

leniency application can Secretariat be lodged: Hallwylstrasse 4 CH-3003 Bern Tel.: +41 58 462 20 40 (application via telephone is not possible) info@weko.admin.ch (general contact) Contact point for leniency applications

hours a day during 7 days a week: selbstanzeige@weko.admin.ch or https://www.weko.admin.ch/weko/de/home/anzeigen/selbstanzeigebonusregelung/e-marker.html (online form)

R Does the policy address Partially yes. If the Secretariat finds that the voluntary report

the possibility of (leniency application) is incomplete, it informs the undertaking, in

A marker protects an applicant’s place in the queue for a given period of time and allows it to gather the necessary information and evidence in order to meet the relevant evidential threshold for immunity.

Also known as: “leniency plus”, “amnesty plus” or “immunity plus”. This category covers situations where a leniency applicant, in order to get as lenient treatment as possible in a particular case, offers to reveal information about participation in another cartel distinct from the one which is the subject of its first leniency application.

leniency being revoked? agreement with a member of the presiding body, of any additional If yes, describe the information it shall submit (Article 9 (3)(b) CASO) and sets a final circumstances where deadline for this purpose. If the voluntary report (leniency revocation would occur. application) is not subsequently completed, the undertaking loses its Can an appeal be made position in the ranking. It shall then be determined whether another against a decision to undertaking is in a position to file the first complete voluntary report. revoke leniency? If a party all of a sudden denies all the facts that it reported before in its leniency application the Commission will in principle not grant a reduction of the fine. The parties can appeal the final decision in the proceeding. In the context of this appeal, they can also appeal the “revocation”.

S. Does your policy allow There are no legal provisions allowing or forbidding such a conduct. for “affirmative In general the Secretariat informs the businesses of the possibility of leniency”, that is the a leniency application at the beginning of searches of premises. possibility of the agency approaching potential leniency applicants?

T Does your authority have Access to the file of the leniency application may be restricted to the

rules to protect leniency premises of the Secretariat. Any form of reproduction (scans, material from photos, etc.) may be prohibited. This applies as a general rule to the disclosure? If yes, reporting undertaking as well as to the other parties of the please elaborate which proceedings. Whether annexes of the leniency application can be parts are protected and consulted depends on the volume of the file. Access usually takes what does protection place at the premises of the competition authority; however if the actually mean. volume is such that an onsite consultation is not reasonable for the parties and if this prevents them from exercising their right to effective defence, copies may be provided to the parties to the investigation (usually in electronic form), with restrictions as to the extent of their use. This means the copies provided to the parties may be exclusively used for the preparation of the defence in the ongoing administrative cartel procedure before the Swiss competition authorities (but not in civil, criminal and foreign procedures).

According to current case law, third parties are not given access to leniency material (see 16.L).

Settlement

A Does your competition Yes. According to Article 29 of the Cartel Act, the Secretariat

regime allow settlement? may propose a settlement to undertakings, if it considers that a restraint of competition is unlawful. Available in: German, French, Italian and English.

B Which types of restrictive In principle, all types of restrictive agreements are eligible for

agreements are eligible for settlements. settlement?

C What is the reward of the The Swiss Competition Commission can reduce the amount of

settlement for the parties? the sanction. Whether it does, depends on the circumstances of each individual case.

D May a reduction for settling A reduction for settling can in principle be cumulated with a

be cumulated with a leniency leniency reward. This depends though on the circumstances of

reward? each individual case.

E. List the criteria (if there is There is no such list. any) determining the cases which are suitable for settlement.

F Describe briefly the system According to Art. 29 LCart the power to decide whether there

will be negotiations over a settlement stays with the Secretariat. This does however not prevent undertakings from taking the initiative. The authority is not obliged to settle. In principle, the settlement may be initiated at any time of the investigation. The later the stage of the investigation, the smaller the incentive to settle for the authority.

F Describe the procedural The legal reasoning will in general be shorter and it is less

efficiencies of your likely that a party will appeal against the decision of the Swiss settlement system Competition Commission.

G. Does a settlement necessitate No. that the parties acknowledge their liability for the violation?

H. Is there a possibility for Yes. The normal rules apply (see below 15). settled parties to appeal a settlement decision at court?

Commitment

A Does your competition Yes. Within the framework of settlements and prohibition

regime allow the possibility of decisions. commitment?

If yes, please indicate its public availability

B Which types of restrictive In principle, all restrictive agreements are eligible for

agreements are eligible for commitment. commitment

Are there violations which are excluded from the commitment possibility?

C. List the criteria (if there are There is no such list of criteria. any) determining the cases which are suitable for commitment.

D. Describe, which types of There are commitments about future behaviour. commitments are available under your competition law.

E Describe briefly the system Normally the authority proposes commitments within the

framework of a settlement or a prohibition decision.

I. Does a commitment decision No.

necessitate that the parties acknowledge their liability for the violation?

J. Describe how your authority It asks for regular reports of the involved undertakings. monitors the parties’ compliance to the commitments.

K. Is there a possibility for Yes. The normal rules apply (see below 15). parties to appeal a commitment decision at court?

Investigative powers of the enforcing institution(s)7

A Briefly describe the Investigative measures:

investigative measures - searches of premises including searches of electronic devices available to the enforcing (computers, cell phones, etc.) agency such as requests for - seizure of evidence information, searches/raids8, - interrogation electronic or computer - requests for information searches, expert opinion, - expert opinion etc. and indicate whether Searches of premises are ordered by a member of the such measures requires a presiding body of the Swiss Competition Commission in court warrant. response to a motion from the Secretariat.

B Can private locations, such Private locations and automobiles can be searched whereas

as residences, automobiles, persons may not be searched. A member of the presiding body briefcases and persons be of the Swiss Competition Commission has to authorise the searched, raided or search. inspected? Does this require authorisation by a court?

C Can servers located outside The Swiss Competition Authorities may access the servers

the territory (abroad or in a abroad as long as the Swiss company or subsidiary can cloud) be inspected? Are access the servers abroad from Switzerland (even if they have there special rules for this to use an access key for access). There is no specific statutory investigative power? Please rule; however, the relevant case law of the Federal Supreme explain! Court is clear.

D May evidence not falling Analogously to criminal law, evidence not falling under the

under the scope of the scope of the search warrant can be used as evidence in authorisation allowing the another case if: inspection be seized / used a. the coercive measure in question was lawful; and as evidence in another case? If yes, under which b. a coercive measure would have been adequate and lawful circumstances (e.g. is a with respect to the new evidence. post-search court warrant needed)?

“Enforcing institutions” may mean either the investigating or the decision-making institution or both.

“Searches/raids” means all types of search, raid or inspection measures.

E. Have there been significant No. legal challenges to your use The Federal Court recently confirmed the legality of searches of investigative measures of premises, stating that there must be sufficient suspicion and authorized by the courts? If that the search must be proportionate. yes, please briefly describe them.

Procedural rights of businesses / individuals

A Key rights of defence in The rights following from Article 6 ECHR, as endorsed be the

cartel cases: Please indicate Federal Supreme Court (BGE 139 I 72, 78 et seq., E. 2). the relevant legal provisions. Right to be informed in writing by the Commission of the objections it raises against them (Art. 30 (2) Cartel Act). The right to submit a written statement to those objections (Art.

(2) Cartel Act) within a set time limit. Right to access the Commission’s file (with the exception of business secrets) (Art. 39 Cartel Act in conjunction with Art. 26 et seq. APA) Right to be heard in an oral hearing Art. 30 (2) Cartel Act).

B Protection awarded to The competition authorities are bound by the rules on official

business secrets secrecy, which include the duty to protect business secrets (competitively sensitive under all circumstances (Art. 25 Cartel Act) information): is there a difference depending on whether the information is provided under a compulsory legal order or provided under informal co-operation? Please indicate the relevant legal provisions.

Limitation periods and deadlines

A What is the limitation period There is no time limit. However, if the restraint of competition

(if any) from the date of the has not been exercised for more than five years by the time an termination of the investigation is opened, no sanction can be imposed. infringement by which the investigation / proceedings must begin or a decision on the merits of the case must be made? Please describe potential suspension or interruption opportunities of this limitation period and the requirements for such rules to apply!

B What is the deadline, There is no time limitation. The corresponding case law of the

statutory or otherwise (if any) ECHR applies though. for the completion of an

investigation or to make a decision on the merits? Please describe potential suspension or interruption opportunities of this limitation period and the requirements for such rules to apply!

C What are the deadlines, Only the final decision of the Competition Commission may be

statutory or otherwise (if any) challenged. The appeal has to be filed within 30 days. to challenge the commencement or completion of an investigation or a decision regarding sanctions? (see

Types of decisions

A List which types of decisions The Competition Commission decides:

on the merits of the case can a. based on the finding of an infringement to impose sanctions be made in cartel cases (and to grant full or partial leniency); and/or under the laws listed under Section 1. b. on the appropriate measures (e.g. to order to bring the infringement to an end) c. on the approval of an amicable settlement.

B. List any other types of None. decisions on the merits of the case relevant particularly in hardcore cartel cases under the laws listed under Section 1.

C Can interim measures9 be Yes, the Swiss Competition Commission may order interim

ordered during the measures in order to protect the public interest as regards proceedings in cartel cases? effective competition. Furthermore interim measures may be (if different measures for ordered if, hardcore cartels please - irreparable damage, describe both10.) Which institution (the investigatory / - the measure is urgent, the decision-making one) is - the measure is proportional. authorised to take such decisions? What are the The forecast regarding the main decision may be considered. conditions for taking such a decision?

In some jurisdictions, in cases of urgency due to the risk of serious and irreparable damage to competition, either the investigator or the decision-making agency may order interim measures prior to taking a decision on the merits of the case [e.g.: by ordering the immediate termination of the infringement].

Only for agencies which answered “yes” to question 2.B. above

Sanctions for procedural breaches (non-compliance with procedural obligations) in the course of investigations

A Grounds for the imposition of The following procedural breaches may be sanctioned

procedural sanctions / fines according to the Cartel Act and/or the Criminal Code:

  • false testimony by a witness;

  • breaches of amicable settlements and administrative decision;

  • refusal to provide information or produce documents.

B. Type and nature of the The sanctions for procedural breaches are criminal sanctions. sanction (civil, administrative, criminal, combined; pecuniary or other):

C On whom can procedural On the parties (undertaking) and/or natural persons involved in

sanctions be imposed? the proceedings. False testimony by a witness shall be liable to a custodial

D Criteria for determining the

sentence not exceeding five years or to a monetary penalty. sanction / fine: Any undertaking that breaches an amicable settlement, a final and non-appealable ruling of the competition authorities or a decision of an appellate body can be charged up to 10 per cent of the turnover it achieved in Switzerland in the preceding three financial years. In assessing the amount, due account is taken of the likely profit that resulted from the unlawful behaviour. An undertaking that does not, or does only partially comply its obligation to provide information or produce documents will be charged up to 100’000 Swiss francs. Any person who wilfully violates an amicable settlement, a final and non-appealable ruling of the competition authorities or a decision of an appellate body is liable to a fine not exceeding 100’000 Swiss francs. Any person who wilfully does not, or does only partially comply with a ruling of the competition authorities concerning the obligation to provide information, is required to pay a fine of at most 20'000 Swiss francs.

E. Are there maximum and / or See above 13.D. minimum sanctions / fines?

Sanctions on the merits of the case

A Type and nature of sanctions The Cartel Act provides with the exception of the above

in cartel cases (civil, mentioned (see 13.) breaches for procedural rules only administrative, criminal, financial sanctions. According to the European Court of Human combined): Rights and the Swiss Federal Supreme Court cartel sanctions have criminal character. Such sanctions can be imposed on On whom can sanctions be undertakings individually and in addition to associations. imposed?

B Criteria for determining the The sanction is assessed on the basis of the duration and the

sanction / fine: [e.g.: gravity, seriousness of the unlawful conduct. Determining the sanction,

duration of the violation, the principle of proportionality has to be respected. benefit gained from the Aggravating circumstances may be: violation] - repeated infringements,

  • particularly high profits,

  • the refusal to cooperate with the authorities or attempts to obstruct the investigation,

  • a leading role in the restraint of competition and

  • if an undertaking instructed or carried out retaliatory measures in order to enforce the agreement affecting competition. Mitigating circumstances may be:

  • The undertaking terminates the restraint of competition after the first intervention of the Secretariat of the Swiss Competition Commission,

  • an undertaking played a strictly passive role,

  • an undertaking did not carry out retaliatory measures.

C Are there maximum and / or In no case will the sanction exceed 10 per cent of the turnover

minimum sanctions / fines? achieved by the undertaking in Switzerland during the preceding three financial years.

D Guideline(s) on calculation of Ordinance of 12 March 2004 on Sanctions imposed for

fines: Unlawful Restraints of Competition (Cartel Act Sanctions Ordinance, CASO) and the corresponding notice on the CASO.

https://www.fedlex.admin.ch/eli/cc/2004/175/en Available in German, French, Italian and English.

E Does a challenge to a Appeals to the Federal Administrative Court have an automatic

decision imposing a sanction suspensory effect on sanctions. Appeals to the Federal Court / fine have an automatic (Supreme Court) may be granted suspensory effect upon suspensory effect on that request. sanction / fine?

Possibilities of appeal

A Does your law provide for an The Cartel Act in conjunction with the administrative procedure

appeal against a decision that Act provides for an appeal with the Federal Administrative there has been a violation of Court. a prohibition of cartels? If Grounds of appeal may be: yes, what are the grounds of a) Questions of law and/or fact appeal, such as questions of law or fact or breaches of b) Breaches of procedural requirements. procedural requirements? An appeal against the decision of the Federal Administrative Court may be lodged with the Federal Supreme Court. In general, the Federal Supreme Court only examines questions of law (exceptionally the arbitrary appreciation of the facts).

B Before which court or agency The Federal Administrative Court and the Federal Court

should such a challenge be (Supreme Court) thereafter. made? [if the answer to question 15/A is affirmative]

Private enforcement

A. Are private enforcement of Yes. competition law and private damage claims possible in your jurisdiction?

B Laws regulating private Federal Act of 6 October 1995 on Cartels and other

enforcement of competition Restraints of Competition (Cartel Act, CartA) law in your jurisdiction

available: in German, French, Italian and English

Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) of 30 March 1911 (Status as of 1 January 2020) https://www.admin.ch/opc/en/classifiedcompilation/19110009/index.html Swiss Civil Procedure Code of 19 December 2008 (Status as of 1 January 2018) https://www.admin.ch/opc/en/classifiedcompilation/20061121/index.html

Both available: in German, French, Italian, Romanic, English

C Implementing regulation(s) Federal Act on the Amendment of the Swiss Civil Code

on private enforcement (Part Five: The Code of Obligations) of 30 March 1911 (Status as of 1 January 2020) https://www.admin.ch/opc/en/classifiedcompilation/19110009/index.html Available: in German, French, Italian. Romanic, English Federal Act of 6 October 1995 on Cartels and other Restraints of Competition (Cartel Act, CartA) http://www.admin.ch/ch/e/rs/c251.html Available in: German, French, Italian and English

D On what grounds can a Art. 12 Cartel Act provides the following:

private antitrust cause of Rights arising from a hindrance of competition action arise? / In what types of antitrust matters are 1 A person hindered by an unlawful restraint of competition private actions available? from entering or competing in a market is entitled to request: a. the elimination of or desistance from the hindrance; b. damages and satisfaction in accordance with the Code of Obligations; c. surrender of unlawfully earned profits in accordance with the provisions on agency without authority.

Hindrances of competition include in particular the refusal to deal and discriminatory measures.

The rights set out in paragraph 1 above are also accorded to persons who are hindered by a lawful restraint of competition

more than is necessary for the implementation of that restraint.

Therefore, private actions are available in cases of unlawful agreements affecting competition and in cases of abuse of a dominant position.

E What pleading standards There are two possible ways to lodge a claim:

must the plaintiff meet to file 1. The plaintiff may take civil action even though the a stand-alone or follow-on competition authorities have not opened an investigation claim? or rendered a decision.

The plaintiff may take civil action (mainly damage claims) – is a finding of based on the findings of the competition authorities. In infringement by a this case, the decision must be judicially finalised. competition agency Although civil courts are not legally bound by the factual required to initiate a findings of the competition authorities, they will private antitrust action in nevertheless be of great importance in the civil your jurisdiction? What is proceedings. the effect of a finding of infringement by a competition agency on national courts/tribunals?

– if a finding of infringement by competition authority is required, is it also required that decision to be judicially finalised?

F Are private actions available It is conceivable that the participants of a bid-rigging cartel

where there has been a could be liable under the Swiss Criminal Code (cf. 2. E. above). criminal conviction in respect The Courts have not answered this question yet. If the of the same matter? responsible representatives of companies participating in bidrigging cartels were liable under the Swiss Criminal Code the victim could possibly lodge a civil claim for damages against the responsible representatives.

G Do immunity or leniency There is no explicit legal base to treat immunity or leniency

applicants in competition applicants different from other cartel members. investigations receive any beneficial treatment in followon private damages cases?

H Name and address of There are no such specialised courts. However, the Swiss Civil

specialised court (if any) Procedure Code states that there can only be one cantonal where private enforcement instance for cartel law disputes (Article 5 paragraph 1 lit. b). claims may be submitted to Normally and if existing this is the cantonal commercial court.

I. Information about class None. action opportunities

J Role of your competition Article 15 paragraph 1 Cartel Act provides the following:

agency in private If the legality of a restraint of competition is questioned in the enforcement actions (if at all) course of civil proceedings, the case shall be referred to the Competition Commission for an expert report.

K What is the evidentiary In principle, the plaintiff has to quantify and prove the

burden on plaintiff to quantify damages. The court may estimate the damages if an exact the damages? What evidence quantification is impossible (Article 42 Paragraph 2 Code of Obligations), but the plaintiff still has to prove all necessary

is admissible? circumstances in order for the court to make such an estimation. – Role of your competition There is in principle a “numerus clausus” of possible evidence agency in the damage according to Article 168 Civil Procedure Code. The following calculation (if at all) evidence is admissible: a. testimony; b. physical records; c. inspection; d. expert opinion; e. written statements; f. questioning and statements of the parties. The competition agency does not have to calculate the damage in its own decisions. It is not involved in the damage calculation in private actions.

L Discovery / disclosure

issues:

– can plaintiff obtain Public procurement agencies can obtain access to the access to competition competition authorities’ files in bid rigging cases by submitting authority or prosecutors’ a request for access. However, access to leniency application files or documents documents is not given. Since criminal prosecution in cartel collected during cases is only potentially possible in bid-rigging cases and no investigations? such case has been opened yet, the question of access to criminal prosecutors’ files in cartel cases has not been – is your competition addressed so far. agency obliged to The question whether the competition agency is obliged to disclose to the court the disclose the file of the case to a civil court has not yet been file of the case (in followraised. on cases)?

– summary of the rules There are not any such rules in the Cartel Act (Art. 160 ZPO regulating the disclosure states a duty to cooperate, which though is a rule of civil of confidential procedure and so far no inquiries from civil courts have been information by the received in this regard). competition agency to the court

– summary of the rules There are not any such rules in the Cartel Act (Art. 160 ZPO, regulating the disclosure states a duty to cooperate, which though is a rule of civil of leniency-based procedure and so far no inquiries from civil courts have been information by the received in this regard) competition agency to the court

M Passing-on issues: There are no specific rules and so far no court decisions in this

matter. – how is passing-on regulated / treated in your jurisdiction? – is standing to bring a claim limited to those directly affected or may indirect purchasers bring claims?