Answer ... In Switzerland, cartels are regulated by the Federal Act on Cartels and Other Restraints of Competition of 6 October 1995 (‘Cartel Act’). The regulatory framework is supplemented by several ordinances, general notices, guidelines and communications of the Competition Commission (ComCo). Among the federal ordinances that apply to cartels, particular mention should be made of the Ordinance of 12 March 2004 on Sanctions imposed for Unlawful Restraints of Competition (‘Cartel Act Sanctions Ordinance’), which defines (among other things) the procedures for calculating sanctions.
Answer ... Pursuant to Article 3, paragraph 1 of the Cartel Act, statutory provisions that do not allow for competition in a certain market for certain goods or services take precedence over the provisions of the Cartel Act. Such statutory provisions include, in particular:
- provisions that establish an official market or price system; and
- provisions that grant special rights to specific undertakings to enable them to fulfil public duties.
In certain areas – such as public education, agriculture and healthcare – competition may be excluded in whole or in part. However, the competition authorities only very restrictively admit exceptions based on Article 3, paragraph 1.
Answer ... The Cartel Act provides for two competition bodies: the ComCo and the ComCo Secretariat. In cartel proceedings, the Secretariat essentially assumes the role of a public prosecutor; whereas the ComCo is the decision-making body. The main tasks of the Secretariat are therefore to conduct investigations and to prepare the ComCo’s decisions. The total staff of the Secretariat amounts to more than 70 employees, a significant number of whom are lawyers and economists. The ComCo, which is headed by its president and two vice presidents, consists of 11 to 15 members who are elected by the Federal Council. Most of its members must be independent experts; the other members are nominated by major business associations.
Answer ... According to its most recent annual report, the Secretariat conducted 24 investigations in 2018. In that year, four final decisions were issued, of which two were amicable settlements and two administrative rulings. In each of these final decisions, sanctions were imposed pursuant to Article 49a, paragraph 1 of the Cartel Act. In general, and in view of the statistics in recent years, it may be said that the ComCo is actively pursuing cartels in Switzerland, covering many different sectors of the economy.
Key decisions issued by the enforcement authorities in recent years include those in Gaba/Elmex and Engadin I. In 2009 Gaba, the manufacturer of Elmex toothpaste, prohibited Gebro – which produces Elmex in Austria under licence – from exporting the toothpaste to other countries such as Switzerland. The ComCo subsequently fined Gaba for unlawfully restricting parallel imports. According to the ComCo, competition was significantly impaired by Gaba’s conduct. This decision was subsequently confirmed by the Federal Supreme Court.
Engadin I related to a major investigation in the canton of Graubünden concerning a bidding agreement between various construction companies. Between 2004 and 2012, 13 companies from the construction industry colluded on public procurement contracts. Offers were divided between them and prices agreed upon. In total, 235 public tenders with a value of 112 million were affected by this bidding cartel.