Answer ... The cartel investigation under Swiss antitrust law is a two-stage procedure: the Secretariat generally opens a preliminary investigation and then opens an in-depth investigation if there are indications of an unlawful restraint of competition (see question 3.1). When the procedure begins with a preliminary investigation, an initial questionnaire is generally sent to the companies concerned. However, an in-depth investigation may be opened without a prior investigation; in such cases, the authorities will often start the investigation procedure by searching the premises (dawn raid) of the target company.
Answer ... Yes, dawn raids are commonly conducted in Switzerland. The essential material condition for conducting a dawn raid is a sufficient suspicion of a violation of antitrust law. From a formal point of view, any dawn raid must in principle be based on a written warrant issued by a member of the Competition Commission’s (ComCo) presiding body. Dawn raids are usually conducted in the early hours of the day at the premises of the target company by a team from the Secretariat, accompanied by a public officer (eg, local police officer). The dawn raid team has the right to search all premises, whether company or private premises, as well as the premises of the parties to the proceedings and third parties. All containers on the premises may also be searched (eg, office cupboards and safes).
Answer ... During the dawn raid, the team may search the entire premises (see question 4.2), all papers and documents contained therein, as well as all data accessible from the location of the search. The main limitation imposed on the powers of the Secretariat lies in the respect of the principle of proportionality. Thus, the dawn raid team must ensure that interference with the company’s business is limited as much as possible and that the company’s legitimate interests are safeguarded.
Answer ... The target company and any individuals involved have the right (but not the obligation) to participate in the dawn raid. If papers or other records are searched, the ‘holder of the papers’ has the right (but not the obligation) to comment on their content prior to the search. The individuals concerned can thus indicate whether, for example, a paper is of a private nature or whether there is a prohibition on seizure – in particular, whether the document is covered by client-attorney privilege. The ‘holder of the documents’ has the right to object to the search of documents and other records. If an opposition is filed, the documents are sealed and kept in a safe place until the Lower Appeals Chamber of the Federal Criminal Court rules on the validity of the search. Moreover, the target company is entitled to obtain assistance from a lawyer. However, the dawn raid team will not wait for the lawyer to arrive before starting its search of the premises or seizing documents or electronic data.
The target company and the individuals concerned have an obligation to tolerate the search. This duty includes ensuring access to the premises, containers and data systems being searched (eg, by opening doors and safes and revealing passwords). They may not prevent or impede access to them, under penalty of committing the criminal offence of impeding the performance of an official act (Article 286 of the Swiss Criminal Code). However, the persons concerned are not obliged to cooperate actively in the search.
Answer ... In principle, all original written documents and accessible data may be seized during a dawn raid. In practice, the Secretariat usually makes copies of written documents and makes duplicates or copies of company data for further analysis at its premises using forensic software. The enforcement authorities may hear witnesses and take statements during a dawn raid. The latest dawn raids conducted by the Secretariat have confirmed this practice.
Answer ... Companies should consider setting up dawn raid preparedness programmes, through which the roles and internal procedures of the company in case of a dawn raid are clearly defined. In general, it may also be recommended that privileged correspondence with the company’s lawyers (or also notaries) be filed and archived separately.
In the event of a dawn raid, the target company would be well advised to avoid any aggressive behaviour towards members of the search team and to provide easy access to the premises to be searched. In addition, the destruction or concealment of evidence should be avoided in all circumstances, as such acts are criminally reprehensible. It is also recommended to refuse any hearing or statements of individuals without the presence of a lawyer. Finally, it will be necessary to rapidly assess whether a leniency application (see question 5) should be considered, in order to benefit from a possible remission of the fine.
Answer ... The Secretariat normally conducts hearings of the individuals concerned at relatively short notice (ie, within days of the dawn raid). The Secretariat then generally submits requests for information to the parties or third parties concerned. At the same time, data and documents containing possible professional secrets (eg, correspondence exchanged with lawyers or notaries), or of a purely private nature, are normally sorted out. In practice, the parties generally do not have immediate access to the complete file, since the Secretariat must first – in agreement with the parties concerned – expunge any business secrets contained in the documents seized. Depending on the complexity of the case, this phase of sorting and expunging documents may take several months.
Answer ... Cartel agreements based on written contracts or other kinds of formal agreements (eg, letters of intent) will in principle permit the enforcement authorities to assess their (un)lawfulness. However, in a significant number (if not the majority) of cases, cartel agreements are based on tacit (or at least more subtle) agreements on concerted practices between the undertakings concerned. The enforcement authorities must thus establish the real intention of the parties on the basis of other types of documents (eg, minutes of meetings and emails). In this context, the statements of the persons who intervene in the first few hours of the procedure will also weigh significantly in the assessment of the case.
Answer ... If the Secretariat considers that a restriction of competition is unlawful, it may, in accordance with Article 29 of the Cartel Act, propose to the company concerned an amicable settlement on such terms and conditions as would eliminate the restraints. The settlement must be formulated in writing and approved by the ComCo. Provided that the conditions below are met, the company concerned may, on its own initiative or on the proposal of the Secretariat, express its interest in reaching an amicable settlement. However, the company may not claim that the Secretariat should enter into negotiations or conclude such an agreement; the Secretariat has wide discretion in this respect.
In order for an amiable settlement to be validly concluded, the company concerned must be prepared:
- to take, of its own free will, measures to eliminate a restraint on competition deemed unlawful by the Secretariat;
- to cooperate with the Secretariat – in particular, by undertaking to refrain from producing voluminous memoranda and other petitions; and
- to waive any appeal procedure.
The conclusion of a friendly settlement is then considered by the cartel authorities to be the result of good cooperation and is rewarded by a reduction in fine. However, the amount of this fine reduction will depend on the stage of the proceedings at which the agreement is reached, as follows:
- beginning of the investigation: maximum 20%;
- intermediate stage: approximately 15%;
- end of the investigation: approximately 10%;
- after notification of the proposed decision: approximately 5%.
In addition, reference is made to the explanatory note dated 28 February 2018 issued by the Secretariat on the modalities for the conclusion of amicable settlements.