Defending Swiss Corporations in Antitrust Instances

Defending Swiss Corporations in Antitrust Instances

Dr Sébastien Gobat of Troller Hitz Troller shares his experiences with us on this article, diving deeper into the method concerned in litigating cartel proceedings and different antitrust issues.

What are the important thing challenges when litigating on antitrust instances?

A cartel continuing usually begins with a ‘daybreak raid’ by the Swiss Competitors Fee (COMCO) on firms that will doubtlessly take part in an illegal settlement or are allegedly abusing their dominant place. It’s due to this fact essential to be significantly reactive and, ideally, already help the businesses involved of their premises in the course of the daybreak raid. The following step is to rapidly perceive what’s at stake within the case. This implies understanding the financial functioning of the related market in industrial sectors which might be typically utterly new to me – however that is additionally what makes my job so thrilling. The comparatively lengthy length of the proceedings – a number of years if all cures are exhausted – and the comparatively advanced authorized points raised by these instances characterize additional challenges.

What are the most typical violations of competitors legislation in Switzerland?

The commonest antitrust violations fall into two classes: 1) agreements that considerably prohibit or get rid of competitors on a particular marketplace for items or providers and a couple of) abusive conduct of dominant undertakings.

Within the first class, it’s common to search out illicit price-fixing agreements, whether or not on a horizontal stage (i.e. between rivals) or on a vertical stage (i.e. between a producer and its distributors or between a wholesaler and retailers). It is usually frequent to search out agreements within the context of public bidding (‘bid rigging’). As an illustration, firms could agree to not take part in a sure bidding process, or outline a rotation system for his or her participation in such procedures, or agree on the costs and situations to be provided.

Within the second class (abusive conduct of dominant undertakings), it’s not unusual to search out dominant undertakings that attempt to consolidate their dominant place by refusing to provide prospects, discriminating between buying and selling companions in relation to costs or different situations of commerce or making an attempt to impose unfair costs.

A cartel continuing usually begins with a ‘daybreak raid’ by the Swiss Competitors Fee (COMCO) on firms that will doubtlessly take part in an illegal settlement or are allegedly abusing their dominant place.

Which sectors are extra liable to falling foul of competitors legislation?

The COMCO locations specific emphasis on key sectors, particularly people who have an effect on the infrastructure and fundamental providers of the Swiss financial system. It’s due to this fact frequent for proceedings to be opened within the sectors of building (particularly the street building sector), finance, telecommunications and well being. Nonetheless, extra particular sectors – such because the French guide market not too long ago – can also be investigated by the COMCO.

If an organization falls foul of antitrust or competitors legislation, what steps ought to they take?

If an organization finds – on account of an inside audit, for example – that it’s collaborating in an settlement that’s prone to be thought of illegal below antitrust legislation, it’s value contemplating whether or not it ought to provoke a so-called leniency programme by reporting the illegal conduct to the COMCO. A leniency programme could result in the avoidance of a monetary sanction or to a considerable discount thereof. Such a measure will likely be related if no proceedings have but been initiated by the COMCO or if an investigation process has simply began.

If an investigation has already been initiated and it’s too late to take part in a leniency programme or if the place of the COMCO is contested, the corporate must defend its place, specifically by making use of its procedural rights. In such a case, the lawyer’s position will even be to evaluate the authorized dangers and to achieve, if needed, an amicable settlement with the COMCO so as to settle the case and restrict the prices of the process.

From a preventive perspective, what will be accomplished to make sure firms don’t infringe on the present regulation?

Corporations doubtlessly uncovered to antitrust dangers ought to implement a compliance and prevention programme. The place to begin of any compliance and prevention programme is the identification of the prevailing antitrust dangers (danger evaluation). The dangers will be recognized both by the corporate’s inside compliance division or by an exterior lawyer.

It is usually vital to conduct common coaching programs at an early stage with the corporate’s workers so as to develop a company tradition delicate to antitrust dangers. Explicit emphasis needs to be positioned on the staff who commonly meet with rivals or who’ve any position within the firm’s pricing coverage.

Lastly, the programme needs to be monitored at common intervals and corrective measures taken if needed.

Corporations doubtlessly uncovered to antitrust dangers ought to implement a compliance and prevention programme.

How has the extension of the management of abusive conduct to firms with relative market energy impacted the character of investigations and disputes in Swiss competitors legislation?

The brand new regulation on firms with relative market energy that got here into pressure on 1 January 2022 has led to some notifications to the COMCO. The affect of this new regulation just isn’t but clear and it’s too early to evaluate its effectiveness. Nonetheless, from a practitioner’s perspective, it seems that many firms that could be victims of abuse by suppliers with relative market energy are reluctant to complain to the COMCO, as this might jeopardise enterprise relationships that will have existed for a few years with their suppliers and are important for the businesses involved.

On this respect, it may be famous that the COMCO has simply opened an investigation in opposition to the French publishing group Madrigall. On this context, it should study whether or not Madrigall is unlawfully limiting the likelihood for Swiss guide retailers to purchase books in France at higher situations. This investigation could possible end in a primary main determination on the brand new provisions on relative market energy.

How can you help your purchasers with mergers which might be investigated by the competitors fee on the grounds that the merger creates or strengthens a dominant place?

In such a state of affairs, my process will likely be to help the businesses to acquire merger clearance from the COMCO. In concrete phrases, this implies getting ready a merger notification and accompanying the businesses involved by the notification process, representing them earlier than the COMCO. Ideally, when the timing of the merger permits it, it’s common follow to submit a pre-notification to the COMCO in order that the latter can assess whether or not the draft notification is full. This permits the COMCO to anticipate the formal notification and to gather the required knowledge in good time to evaluate the case. As our workplace is situated in Berne – just like the COMCO – this proximity is a bonus for the interplay with this authority.



Dr Sébastien Gobat, Associate

Troller Hitz Troller

Münstergasse 38, CH-3011 Berne, Switzerland

Tel: +41 31 328 36 36



Dr Sébastien Gobat is a companion at Troller Hitz Troller in Berne, Switzerland. He’s specialised in antitrust, unfair competitors and the varied areas of mental property legislation. He additionally has confirmed experience in distribution legislation (company, license and franchising agreements) and insolvency legislation. He commonly advises firms within the area of antitrust legislation and represents them earlier than the Swiss Competitors Fee (COMCO) within the context of investigations or merger notifications.

Troller Hitz Troller is a famend Swiss legislation agency. Established in 1941 with places of work in Berne and Lucerne, it provides providers within the fields of mental property (trademark, patent, design and copyright legislation), antitrust and unfair competitors legislation, in addition to contract and enterprise legislation.



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