Answer ... Yes. Undertakings which fully cooperate in the discovery and elimination of a hardcore restraint of competition within the meaning of Article 5, paragraphs 3 and 4 of the Cartel Act may have their sanction waived or reduced.
The conditions for obtaining full or partial immunity from a sanction are set out in Articles 8–14 of the Cartel Act Sanctions Ordinance (CASO). Accordingly, undertakings intending to benefit from the leniency programme must, among other obligations:
- submit spontaneously to the competition authorities all information and evidence at their disposal concerning the anti-competitive practice; and
- cooperate continuously, unreservedly and without delay with the authorities throughout the proceedings (Article 8, paragraph 2 of the CASO).
The Secretariat has issued an explanatory note dated 8 September 2014 on the leniency programme, in which the practice of the competition authorities is explained in detail.
Answer ... Pursuant to Article 8, paragraph 1 of the CASO, the first mover may be granted complete immunity from a sanction if:
- it reports its own participation in a restraint of competition within the meaning of Article 5, paragraphs 3 and 4 of the Cartel Act; and
- it is the first undertaking to provide information that enables the competition authorities to open an in-depth investigation under Article 27 of the Cartel Act or provides evidence that enables the competition authorities to establish an infringement of competition in accordance with Article 5, paragraph 3 or 4 of the Cartel Act.
All other undertakings may qualify for partial immunity from the sanction (ie, a reduction in the sanction) (Articles 12–14 of the CASO). The sanction can be reduced by up to 50%. The decisive factor here is the extent to which the company contributes to the success of the proceedings. If the voluntarily submitted information or evidence has not yet been submitted by other companies, it is generally considered more valuable. The sanction may be reduced by up to 80% if an undertaking voluntarily provides information relating to further infringements of competition (‘Bonus Plus’). This information or evidence must meet the conditions prescribed by Article 8, paragraph 1 of the CASO. The Competition Commission (ComCo) will decide on the amount of the reduction at the end of the procedure (Article 14, paragraph 1 of the CASO).
Answer ... An undertaking seeking immunity from sanction must demonstrate:
- its involvement in agreements or concerted practices with other undertakings;
- the object of the restraint of competition; and
- the effects the infringement produced on the market.
As outlined in question 5.2, there are two different types of cooperation which may lead to full immunity: cooperation which enables the ComCo to open an in-depth investigation and cooperation which enables the ComCo to establish a qualified infringement of the Cartel Act. In this second latter form of cooperation, immunity remains possible even if the ComCo already has enough information to initiate an investigation or even if an investigation has already been initiated. This means that immunity may still be granted as long as the ComCo does not possess sufficient evidence to prove the competition violation (ie, even during an ongoing dawn raid).
As the time factor plays a determining role, it is essential that the chronological order in which voluntary reports are filed with the enforcement authorities can be clearly established. In order to communicate its willingness to cooperate with the authorities as quickly as possible, an undertaking may first file a so-called ‘marker’ – that is, a declaration that it will subsequently file a voluntary report. The Secretariat will confirm receipt of the application for the marker, indicating the date and time and setting a deadline for the undertaking to submit its voluntary report. The voluntary report may be submitted in writing or may even be placed or recorded orally at the Secretariat’s premises. The time of filing of markers is decisive in determining the ranking of participants in the leniency programme; however, to be valid, the marker must be followed by a self-denunciation that satisfies the requirements of a full or partial waiver of the sanction.
Answer ... Any undertaking which files a voluntary report in accordance with Articles 8 and following of the CASO has a duty to cooperate during the entire procedure which goes beyond the usual obligation to cooperate in the usual enforcement proceedings (Article 8, paragraph 2 of the CASO). This duty encompasses, among other things, the willingness to:
- make statements during interviews pursuant to Article 42, paragraph 1 of the Cartel Act;
- respond to requests for information; and
- submit, voluntarily or upon request of the authorities, any evidence which is accessible to the undertaking.
In return, the undertaking has the right to have the filing of its voluntary report treated confidentially by the Secretariat. Confidentiality may be lifted only in the context of the right to access the file – which is specifically regulated – or if the undertaking waives its right to confidentiality, for example by publicly announcing that it has submitted a voluntary report. In any event, and even if the competition authorities give access to the voluntary report, the company’s trade secrets must be preserved, in accordance with Article 25 of the Cartel Act.
Answer ... The leniency programme may apply directly to individuals only if they meet the definition of an ‘undertaking’ pursuant to Article 2, paragraph 1bis of the Cartel Act (eg, an enterprise conducted in the form of a sole proprietorship). Moreover, Swiss legislation contains no special rules on whistle-blowers and does not provide a special regime for employees of an undertaking participating in a leniency programme.
Answer ... When a voluntary report is filed, the Secretariat will acknowledge receipt, specifying the date and time of its registration. In consultation with a member of the presiding body of the ComCo, it will then inform the reporting undertaking of the extent to which it regards the requirements for complete immunity from the sanction in accordance with Article 8, paragraph 1 of the Cartel Act to be fulfilled (see Article 9, paragraph 3 of the Cartel Act). The Secretariat will also inform the reporting undertaking of any additional information that must be submitted to fulfil the requirements set out in Article 8, paragraph 1 of the Cartel Act. Leniency may thus be denied or even revoked by the ComCo if the requirements set out in Article 8, paragraph 1 are not (or no longer) met. However, the ComCo will depart from the communication issued by the Secretariat pursuant to Article 9, paragraph 3 of the CASO only if it subsequently becomes aware of elements that preclude the full waiver of the sanction (Article 11, paragraph 2 of the CASO).