Competition Law

Author:Bär & Karrer
Profession:Baer & Karrer
 
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  1. Introduction

The Swiss Act on Cartels ("CA") (Kartellgesetz, Loi sur les cartels) distinguishes three types of conduct that are subject to regulation:

Agreements that (i) significantly restrict competition and are not justified for reasons of economic efficiency (see below 2.) or that (i i) eliminate effective competition. The abuse of a dominant position (see below 3.) The concentration of undertakings (see below 4.). 2. Agreements restricting competition

2.1. Introduction

Under the Swiss Oct on Cartels ("CA")( Kartellgesetz, Loi sur les cartels) two types of agreements restricting competition are unlawful:

Agreements that significantly restrict competition. According to a leacing case decided by the Federal Supreme Court, agreements which presumptively eliminate competition according to the CA, i.e. horizontal price fixing, quantity fixing and market sharing (horizontal hardcore restrictions), as well as vertical price fixing and territorial protection (see below 2.3) are i n general deemed to be significant without the need to show that there is a quantitatively signifiant restriction of competition. Significant restrictions of competition are unlawful if they are not justified for reasons of economic efficiency (see below 2.2). Agreements that eliminate effective competition. Such agreements are unlawful and cannot be justified for reasons of economic efficiency. As already mentioned, the CA presumes that certain restrictions, i .e. horizontal hardcore restrictions as well as vertical price fixing and territorial protection eliminate effective competition (see below 2.3). Unlawful agreements restricting competition have no effects between the parties and are void. In accition, direct fines may be imposed on parties that entered into agreements that presumptively eliminate effective competition (i.e. horizontal hardcore restrictions as well as vertical price fixing and vertical territorial protection) (see below 2.4).

2.2 Agreements significantly restricting competition

There is an agreement or concerted practice; which has as its object or effect the restriction of competition; which is significant and; which cannot be justified on grounds of economic efficiency. 2.2.1 Agreement or concerted practice

The CA does not only cover binding and non-binding agreements but also concerted practices. Concerted practices are a form of coordination which, without qualifying as an agreement, knowingly substitutes cooperation between...

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