Answer ... Contrary to what its title might suggest, the Cartel Act does not define the notion of ‘cartel’ as such, but refers rather to the concept of ‘agreements affecting competition’. Pursuant to Article 4, paragraph 1 of the Cartel Act, ‘agreements affecting competition’ are defined as binding or non-binding agreements, as well as concerted practices, between undertakings operating at the same or at different levels of production which have a restraint of competition as their object or effect. This definition is very broad and includes a wide range of possible agreements, from parallel (coordinated) behaviour and gentlemen’s agreements to binding forms of collusion.

Answer ... As a general rule, agreements that significantly restrict competition in a market for specific goods or services and are not justified on grounds of economic efficiency, and all agreements that eliminate effective competition, are unlawful (Article 5, paragraph 1 of the Cartel Act). For certain so-called ‘hardcore’ agreements, the elimination of effective competition is presumed. In this context, the Cartel Act distinguishes between horizontal agreements (ie, agreements between actual or potential competitors) and vertical agreements (ie, agreements between undertakings at different levels of the market). Horizontal agreements relating to prices or quantities, or that allocate markets, are presumed to eliminate effective competition and are therefore presumed to be illegal. The same applies to vertical agreements which impose a minimum or fixed resale price, as well as distribution contracts allocating territories, to the extent that sales by other distributors into these territories are not permitted.

Answer ... The Swiss cartel legislation essentially provides for sanctions of an administrative nature. However, in the opinion of the prevailing doctrine and the Federal Supreme Court, such administrative sanctions are to be considered as criminal sanctions within the meaning of Article 6 of the European Convention on Human Rights (on this subject, see question 3.6). The Cartel Act also contains a section on the civil liability of undertakings involved in a cartel (on this subject, see question 8), as well as a section on criminal penalties (on this subject, see question 6).

Answer ... From a personal point of view, the Cartel Act applies to undertakings under private or public law that are parties to cartels or other agreements affecting competition. In this context, ‘undertaking’ refers to any enterprise engaged in the economic process which offers or acquires goods or services, irrespective of its organisation or legal form (Article 2, paragraph 1bis of the Cartel Act). As long as they meet the definition of an ‘undertaking’, both individuals and companies can thus be prosecuted under the Swiss cartel legislation.

Answer ... Yes, insofar as the Cartel Act applies to situations that may have effects in Switzerland, even if they are initiated in another country (‘effects doctrine’ pursuant to Article 2, paragraph 2 of the Cartel Act).

Answer ... No, in accordance with the principle of territoriality, the Swiss enforcement authorities cannot directly carry out procedural acts outside the Swiss territory. Subject to cooperation agreements with other states, the application of this principle may thus limit or even preclude certain enforcement measures with regard to companies domiciled abroad, especially if those companies do not have subsidiaries or branches in Switzerland

Answer ... The question of the statute of limitations to prosecute cartel offences in Switzerland is not addressed in the Cartel Act. In a 2018 decision concerning the SIX Group case (B-831/2011), the Federal Administrative Court decided on a 10-year period, applying the provisions of Article 60 of the Swiss Code of Obligations by analogy. However, in the case of qualified restraints of competition, any charge is waived if the restriction of competition ceased to have effect more than five years before the initiation of the investigation (see Article 49a, paragraph 3 of the Cartel Act).