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On 24 May 2012, it was announced that the Competition Commission
of Switzerland ("COMCO") has fined BMW around €
130 million (156 million Swiss francs) for hindering direct and
parallel imports into Switzerland, by prohibiting authorised
dealers within the European Economic Area ("EEA") from
selling new cars of certain specific brands to customers in
Switzerland.
In its decision dated 7 May 2012, COMCO found that BMW AG
(Munich) had impeded parallel imports by virtue of a clause
inserted into dealership contracts in the EEA. According to this
clause, dealers within the EEA were forbidden from selling new cars
of the BMW and MINI brands to customers outside of the EEA and
therefore, by extension, in Switzerland (which is not part of the
EEA). The investigation revealed that, from at least October 2010,
competition within Switzerland had been appreciably affected as a
result of the operation of this clause.
In the second half of 2010, COMCO received a number of
complaints from customers in Switzerland who had attempted,
unsuccessfully, to purchase BMW and MINI brand vehicles from
dealers in the EEA. The authority therefore initiated an
investigation in October 2010.
During the period in question, the Swiss franc had appreciated
significantly against the Euro, thereby rendering purchases from
the eurozone countries extremely attractive. However, by virtue of
the offending clause, Swiss customers were unable to benefit from
this appreciation. Moreover, this "sealing off" of the
Swiss market had the effect of reducing competitive pressure on the
sales price of new BMW and MINI brand cars, which remained up to
25% higher in Switzerland compared to Germany. The adverse effect
on the market was increased by the significant market shares of the
BMW and MINI brands in Switzerland.
This fining decision forms part of a wider campaign by which
COMCO is endeavouring to prevent the "sealing off" of the
Swiss motor vehicle market. Similar to the European Commission, the
Swiss authority has drawn up rules governing the specific
application of competition law provisions to the motor vehicle
distribution sector.
As a result, BMW will now be required to adjust its dealership
contracts within the EEA by removing the export prohibition clause
and informing the relevant dealers accordingly.
In a similar decision adopted in December 2011, COMCO fined
Nikon's Swiss subsidiary € 10 million for having
restricted parallel imports of Nikon Imaging products by, inter
alia, inserting into foreign distribution contracts (including
contracts in many EU Member States) a clause prohibiting the export
of such products to Switzerland (see VBB on Competition law, Volume
2011, No. 12, available at www.vbb.com).
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