Answer ... The Secretariat may conduct preliminary investigations:
- on its own initiative (eg, on the basis of indicators pointing to a possible market deficiency);
- at the request of undertakings involved (eg, competitors of the target company); or
- in response to a complaint from third parties (eg, clients or suppliers of the target company).
If there are indications of an unlawful restraint of competition, the Secretariat shall, in consultation with a member of the presiding body of the Competition Commission (ComCo), open an in-depth investigation – even without necessarily having conducted preliminary investigations. It shall in any event open such an investigation whenever asked to do so by the ComCo itself or by the Federal Department of Economic Affairs, Education and Research.
Answer ... In general, the competition authorities have relatively extensive powers of investigation. They may, in particular, order inspections of premises (‘dawn raids’) and seize any evidence. The Federal Act on Administrative Criminal Law (AACL) applies by analogy to these measures. The competition authorities may also hear third parties as witnesses and compel the parties to the investigation to give evidence. The Secretariat has issued an explanatory note dated 6 January 2016 on selected instruments of investigation, in which the practice of the competition authorities is explained in detail.
Answer ... As a general rule, any cooperation of the Swiss competition authorities with foreign authorities shall be based on a sufficient respective legal basis under an international agreement. Given the increasing globalisation of the economy, and considering its proximity to the European Union, Switzerland has entered an agreement with the European Union concerning cooperation on the application of their competition laws. This agreement entered into force on 1 December 2014 and allows the ComCo and the European Commission’s Directorate-General for Competition to inform each other about enforcement measures, to coordinate such measures and to exchange information. It also contains clear rules on the respect of existing procedural safeguards for the companies concerned. The Cartel Act (Article 42a) also specifically regulates cooperation with European institutions in the field of air transport.
On an informal basis, the competition authorities also participate in different networks of competition authorities, such as the Competition Committee of the Organisation for Economic Co-operation and Development and the International Competition Network. Exchanges within the framework of such networks are limited to the sharing of knowledge and do not allow for formal cooperation.
Answer ... Pursuant to Article 43 of the Cartel Act, the following third parties may apply to participate in the investigation:
- persons who are being hindered from entering into or exercising competition as a result of the restraint of competition;
- professional or economic associations whose statutes allow them to defend the economic interests of their members, provided that members of the association or of one of its sections can participate in the investigation; and
- organisations of national or regional importance which are statutorily dedicated to consumer protection.
Answer ... As discussed in question 3.2, the competition authorities have broad investigatory powers to establish the decisive facts and to assess whether antitrust regulations have been violated. Although the Cartel Act does not expressly provide for this, it is generally admitted that the ComCo may also order interim measures in urgent cases in the event of a probable violation of the Cartel Act that threatens to cause damage that would not easily be remedied. The investigation procedure is governed by the Administrative Procedure Act, unless the Cartel Act stipulates otherwise. This procedure is thus largely dominated by the principle of ex officio investigation. In the context of an investigation, the obligations of the competition authorities consist, in particular, in respecting the rights of the parties (see question 3.6).
Answer ... The parties to an investigation shall have the rights guaranteed to them by the Federal Constitution, the Administrative Procedure Act and the Cartel Act. The right to be heard is in practice the most important right of the parties. It encompasses, in particular, the right to consult the file and the right to obtain a motivated decision within a reasonable timeframe. In addition, Article 30, paragraph 2 of the Cartel Act allows the participants involved in the investigation to comment in writing on the proposal for a decision that the Secretariat intends to address to the ComCo.
Since participation in an unlawful cartel agreement is sanctionable with fines pursuant to Article 49a of the Cartel Act, it is generally accepted that such proceedings are criminal in nature. The guarantees of a fair trial which an accused person must benefit from in criminal matters this apply (Article 6 of the European Convention on Human Rights). These guarantees include, in particular, the presumption of innocence, the privilege against self-incrimination (‘nemo tenetur’ principle), and respect of the principles of legality and ‘ne bis in idem’.
The main obligation of the parties is to inform the competition authorities in accordance with Article 40 of the Cartel Act. The target company and the individuals involved in the investigation must therefore provide the authorities with all relevant information and produce all necessary documents. They may, however, refuse to provide information pursuant to Articles 16 and 17 of the Administrative Procedure Act – in particular, if the disclosure of certain facts would expose the persons questioned to criminal proceedings.
Answer ... Pursuant to Article 46, paragraph 3 of the AACL, it is prohibited to sequestrate objects and documents relating to contacts between a person and his or her lawyer if the latter is authorised to practise legal representation and does not have the status of a defendant in the same case. Attorney-client privilege is therefore fully applicable in the context of a cartel investigation. However, exchanges with in-house counsels are not covered by privilege. Moreover, only documents and information produced in the course of the lawyer’s core activities – that is, legal advice and representation in court – will be privileged. Thus, documents exchanged in the course of another activity of the lawyer (eg, board of directors’ mandate; trust agreement; financial advice) will not be covered by attorney-client privilege.
Answer ... The Secretariat gives notice of the opening of an investigation by way of official publication in the Swiss Official Gazette of Commerce. The competition authorities must then preserve official and business secrets, and may use information obtained in the course of their duties only for the purpose of providing information or carrying out the investigation. Any publication of the competition authorities relating to the investigation is therefore submitted to the parties beforehand and expunged of any official and business secrets.