On 1 December 2014, the new cooperation agreement in competition matters concluded by the European Union with the Swiss Confederation entered into force. The agreement, which was signed already in May 2013, strengthens co-operation between the Commission and the Swiss Competition Commission (see VBB on Competition Law, Volume 2013, No. 5, available at www.vbb.com).
The new cooperation agreement with Switzerland is qualified as a 'second generation' cooperation agreement as it goes beyond the previous cooperation agreements concluded by the European Union. It will enable EU and Swiss competition authorities to closely coordinate their enforcement activities and, most importantly, exchange protected and confidential information without the consent of the companies concerned, and in some instances, outside of a formal investigation. It is the first "second generation" agreement that the European Commission has negotiated.
This new cooperation agreement provides a framework for co-operation and co-ordination of enforcement activities. It increases co-operation for an effective implementation of competition rules. The agreement provides for regular contactin order to discuss policy issues, enforcement efforts and priorities. It also requires the European and Swiss competition authorities to notify each other with respect to their enforcement activities if these may affect important interests of the other party. Moreover, the cooperation agreement enables the competition authorities to coordinate their enforcement activities when they pursue enforcement activities in related matters (e.g., dawn raids). In addition, the competition authorities no longer have to rely on a waiver issued by a leniency applicant in enforcement activities.
The key element of the new cooperation agreement is the intended exchange of specific, case-related information between the European and Swiss competition authorities. This information exchange is determined by strict conditions protecting personal data and business secrets. Such an exceptional and advanced form of cooperation between competition authorities is an innovation in a bilateral cooperation agreement. According to Article VII, paragraph 2 of the cooperation agreement, the Swiss and the European competition authorities can share opinions and exchange information concerning the application of their respective competition laws if certain requirements are met (i.e., the information must relate to the same case and be for the purpose of the initial request). However, no evidence can be used to impose sanctions on natural persons.
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