Cartels & Leniency 2020

Author:Dr. Mani Reinert
Profession:Baer & Karrer
 
FREE EXCERPT

1 The Legislative Framework of the Cartel Prohibition

1.1 What is the legal basis and general nature of the cartel prohibition, e.g. is it civil and/or criminal?

The legal bases of the cartel prohibition are Article 4(1) and Article 5 of the Federal Act on Cartels and other Restraints of Competition (CA) of 6 October 1995, the equivalent to Article 101 TFEU. The basis for fines is Article 49a CA. The Ordinance on Sanctions imposed for Unlawful Restraints of Competition (CASO) of 12 March 2004 regulates details regarding the imposition of fines. The legal nature of the Swiss cartel prohibition is civil.

1.2 What are the specific substantive provisions for the cartel prohibition?

agreements and concerted practices between undertakings operating at the same or at different levels of trade which have a restraint of competition as their object or effect. The Competition Commission (ComCo) has recently increasingly resorted to the notion of an "overall arrangement" to capture several infringements in one overall infringement. This notion resembles the notion of the single and continuous infringement of the European Commission; its contours are, however, less clear.

Article 5(3) CA presumes that arrangements between actual or potential competitors (a) to directly or indirectly fix prices, (b) to limit the quantities of goods or services to be produced, purchased or supplied, and/or (c) to allocate markets geographically or according to trading partners, eliminate effective competition.

Furthermore, Article 5(4) CA presumes that two kinds of vertical arrangements presumptively eliminate competition: (a) arrangements regarding fixed or minimum resale prices; and/or (b) arrangements regarding the restriction of passive sales.

The presumption of elimination of effective competition can be rebutted. However, according to the practice of the Federal Supreme Court, arrangements within the meaning of Article 5(3) or (4) CA are generally significant restrictions of competition. To be lawful, such arrangements need to be justified on grounds of economic efficiency. Arrangements are justified on grounds of economic efficiency if: (a) they are necessary to reduce production or distribution costs, improve products or production processes, promote research into or dissemination of technical or professional know-how, or exploit resources more rationally; and (b) they will, under no circumstances, enable the parties involved to eliminate effective competition.

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