Partial Revision Of Swiss Cartel Act Approaches Finish Line

On 19 December 2025, the Swiss Parliament will pass the partial revision of the Cartel Act. The most important changes are:

• Agreements and the abuse of market power will need to be assessed under an effects-based analysis. In addition, the scope of price agreements that are subject to fines is narrowed.
• In merger control proceedings, the new Significant Impediment to Effective Competition (SIEC)-test lowers the intervention threshold for the Competition Commission (COMCO). In addition, COMCO may extend phase 1-proceedings by one month and phase 2- proceedings by two months with the consent of the parties.
• As regards antitrust proceedings, also individuals can be searched in dawn raids. Furthermore, investigations will need to be concluded within certain non-binding time limits.
• Antitrust civil law is strengthened by the introduction of standing for consumers and the public sector, as well as by the suspension of the limitation period for the duration of the COMCO investigation and the appeal proceedings.
• The compliance defense is expressly enshrined in the law.

The revision is expected to come into force at the beginning of 2027.

The most important changes to the Cartel Act are:

AGREEMENTS

EFFECTS-BASED ANALYSIS

When assessing the legality of agreements, the significance of a restriction of competition will have to be demonstrated on a case by-case basis in an overall assessment analyzing qualitative elements in the form of empirical evidence and quantitative elements in the form of the specific circumstances on the relevant market. 

Tis mans that the inadmissibility of an agreement can no longer be justified with a general reference to the harmful nature of price, quantity, or market-sharing agreements, as was previously possible under the so-called Gaba practice. In practice, this will be particularly relevant for cooperation agreements.

GROSS PRICE AGREEMENTS NO LONGER SUBJECT TO FINES

Contrary to the original intention of the Parliament, the Federal Administrative Court has so far interpreted the notion of price agreements that are subject to fines very broadly. Now the notion of finable price agreements has been narrowed. Finable price agreements are now only agreements on the direct or indirect setting of minimum, fixed, or maximum prices on the demand side. The decisive factor is whether the final price is fixed.

In practice, this will be relevant for agreements on gross prices. These are no longer directly finable if there is competition on rebates.

ABUSE OF MARKET POWER

Similar to agreements, whether the conduct of dominant companies or companies with relative market is abusive will have to be assessed on a case-by-case basis in an overall assessment analyzing empirical evidence and the specific circumstances on the relevant market.

In practice, therefore, the allegation of a mere hypothetical risk or a mere hypothetical or theoretical potential for a restriction of competition will be no longer sufficient.

MERGER CONTROL

SIEC TEST

The threshold under which COMCO can prohibit a concentration or impose remedies will be lowered. In the future, COMCO will be able to prohibit a concentration or require remedies by only showing that the concentration significantly impedes effective competition (SIEC-test). The previous dominance-plus test, which required a dominant market position that could eliminate effective competition in order to prohibit the concentration or the require remedies, is being abolished. While under the new law, also merger-specific efficiencies have to be taken into account, it is mainly the parties that have to substantiate them and the efficiencies need to be verifiable.

It can be assumed that under the SIEC test, COMCO will initiate Phase 2 proceedings more often and will also prohibit concentrations or require remedies more often. In addition, it is to be expected that increased legal uncertainty will persist until the first judgments are handed down by the appeal courts.

POSSIBILITY TO EXTEND THE DURATION OF PROCEEDING

COMCO will be able to extend the one-month deadline of phase 1 to assess concentrations by one month and the four-month deadline of phase 2 by two months. Although this requires the consent of the notifying companies, in practice they are unlikely to refuse their consent.

The possibility to extend the merger control proceeding by a total of three months is intended to enable COMCO to align its proceeding with the proceeding of the European Commission. Beyond that purpose, phase 1 proceedings could also be extended, for example, to allow the conduct of market investigations. Currently,such market investigations are conducted prior to phase 1, i.e., before the final notification is submitted.

Parties will therefore face longer and more challenging merger control proceedings.

ADMINISTRATIVE PROCEDURAL LAW

The procedural law is amended in various respects.

PRESUMPTION OF INNOCENCE

For example, the presumption of innocence is explicitly enshrined in the law and the competition authorities are obliged to investigate incriminating and exonerating circumstances with the same care. However, these amendments are of a rather declaratory nature.

SEARCHES OF INDIVIDUALS

COMCO will be empowered to search not only premises but also individuals during unannounced inspections.

TIME LIMITS FOR INVESTIGATIONS

Formal investigations and the subsequent appeal proceedings will have to be conducted within a total of five years. However, these time limits are not binding, but apply on a "comply or explain" basis.

PARTY COMPENSATION

If COMCO closes a formal investigation without consequences, the parties will be generally entitled to party compensation.

STRENGTHENING OF CIVIL CARTEL LAW

LEGAL STANDING OF END CONSUMERS AND PUBLIC AUTHORITIES

The civil antitrust law is strengthened by the introduction of legal standing for consumers and the public sector (e.g. public procurement authorities), both of which will be able to bring civil antitrust lawsuits.

STATUTE OF LIMITATIONS FOR CIVIL CLAIMS SUSPENDED

The statute of limitations for claims arising from unlawful restrictions of competition will be suspended until the decision of COMCO has become final.

COMPLIANCE DEFENSE

Measures taken by companies to avoid antitrust violations will have to be taken into account in reducing fines if they are appropriate to the size, business activities, and industry of the respective company.

The compliance defense already exists under the current law, but has so far remained practically meaningless. It remains to be seen whether this will change

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.