This section reviews developments concerning the Federal Act of October 6, 1995 on Cartels and Other Restraints of Competition (the "Competition Act"), which is enforced by the Federal Competition Commission ("FCC"). Appeals against decisions of the FCC are heard by the Appeal Commission for Competition Matters (the "Appeal Commission").
LEGISLATIVE DEVELOPMENTS
Bill of Amendment to Internal Market Act
Many professions are still subject to cantonal regulations which limit the right of professionals to practice in other cantons (e.g. architects, teachers, healthcare practitioners). The proposed amendment to the Internal Market Act of October 6, 1995 aims at abolishing these barriers and ensuring the right to carry out one's professional activity in the entire Swiss territory. During the consultation process, some cantons contested the introduction of this principle as well as the right of control of the FCC.
Vertical Restraints – Communication on Motor Vehicle Distribution
On July 27, the FCC published an explanatory note on its Communication on Vertical Agreements in Motor Vehicle Distribution of October 21, 2002. The FCC takes into consideration the main developments in the application of the European Regulation (CE) 1400/2002 and the practice of the European Commission. In particular, the FCC states that: (1) vehicle suppliers have the choice between an exclusive or a selective distribution system; the mixing of both is no longer allowed; (2) notwithstanding the place of purchase of a vehicle within the European Economic Area and Switzerland and irrespective of whether the seller was an authorized distributor or an independent reseller, authorized repairers have the obligation to honor the warranties, perform free servicing and carry out repair work in respect of vehicles of the relevant brand; (3) vehicle suppliers have the obligation to organize their network of authorized repairers within a selective distribution system on the basis of qualitative criteria; (4) the same principle applies to the distribution of spare parts; (5) vehicle suppliers are prohibited from imposing fixed or minimum resale prices on their distributors; (6) in an exclusive distribution network, the distributor may be prevented from actively promoting vehicles outside the allocated territory or group of persons (prohibition of active sales). General advertising on the internet which also reaches potential customers outside the allocated territory or group of persons must be allowed; (7) dissociation of sale, after-sale service and distribution of spare parts must be allowed; (8) vehicle suppliers must not limit access to spare parts. Any authorized or independent repairer must be able to obtain directly original spare parts or spare parts of equivalent quality anywhere in the EEA and in Switzerland; (9) a distributor shall have the right to be the authorized distributor for vehicles of different brands.
ADMINISTRATIVE AND JUDICIAL DECISIONS
- Project of collaboration in the press media and advertising markets
On July 7, 2004, the NZZ (editor in the press media) and Publigroupe (active in the promotion, sale and transmission of press advertising) announced their plan to intensify their collaboration on the markets of press media and advertising by the end of the year. Considering, however, that the FCC is currently investigating PubliGroupe for potential abuse of dominant position, the announced collaboration is likely to give raise to some competition issues. Publigroupe was granted an exclusive advertising management right by several publishing companies. Based on this right, Publigroupe refuses to pay back sales commissions to some of its competitors. Therefore, the advertisers dealing with such competitors are forced to pay a higher price than they would have to pay by dealing directly with Publigroupe to advertise in the newspapers subject to Publigroupe's exclusive right. The investigation is to show whether Publigroupe's refusal is discriminating against competitors and whether such refusal amounts to an abuse of a dominant position.
- Capacity to appeal the clearance of a concentration
On October 20, 2003, the FCC cleared, with conditions, an increase in the indirect shareholding of the publishing company Ringier SA in the newspaper publishing company Le Temps SA. In order to ensure the independence of Le Temps SA from its two major shareholders, Edipresse and Ringier, the FCC maintained and extended the conditions imposed at the time of the creation of Le Temps in December 1997. Agefi, a competitor of Ringier and Edipresse in the newspaper market, appealed the decision of the FCC claiming for the prohibition of the concentration. The Appeal Commission had to examine the very controversial question as to whether a competitor has the capacity to appeal a decision of the FCC within the ambit of its control of a concentration. Based on a teleological construction of the Competition Act, the Appeal Commission denied, on July 15, 2004, the right of a competitor to appeal a decision on concentration.
On July 15, 2004, this holding was also confirmed by the Appeal Commission in the context of the acquisition by the Edipresse group of two daily papers distributed in the Canton of Vaud. The acquisition was cleared on December 16, 2002. Etablissements Chérix, an entity of the Hersant Group and a competitor of Edipresse, appealed the clearance to the Appeal Commission. The Appeal Commission denied the right of Etablissements Chérix, and of a competitor generally, to appeal the clearance of a concentration. On September 16, 2004, Etablissements Chérix appealed this decision to the Federal Supreme Court.
- Zero commission for travel agencies
The national airline company Swiss imposed a new agreement on travel agencies which provides for the suppression of a commission of 7% on the sale of airline tickets. A group of travel agencies filed a complaint to the FCC for abuse of a dominant position. Swiss alleges that it does not hold a dominant position with a market share of 30% and that the zero commission is a common practice around the world.
- Parking services – Interim measures
On December 2, 2003, the FCC opened an investigation against Zurich Airport (Unique) following its refusal to renew authorizations to providers of valet parking services. Such refusal has prevented the providers from offering their services in the Zurich airport parking area. The FCC ordered interim measures to safeguard the rights of the service providers to carry out their business. On June 14, 2004, the Appeal Commission dismissed Unique's appeal against the decision on interim measures. Although the airport regulation is subject to the Federal Office for Aviation's approval, parking authorizations in the airport area are subject to the FCC's control. Unique's decision to refuse the renewal of the authorizations is likely to amount to an abuse of a dominant position.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
