Swiss Supreme Court acknowledges limited privilege for
On 28 October 2008, the Swiss Supreme Court handed down an
important ruling in which it extended in some way the scope of
legal professional privilege to communications between parties and
their in-house solicitors in the context of Swiss competition law.
The Swiss Supreme Court confirmed the view, already expressed by
some commentators, according to which privilege extends to protect
internal communications involving in-house solicitors from
disclosure during competition investigations by the Federal
Competition Commission (FCC), provided that such communications
have not been made available by the company's corporate bodies
to other persons within the company and have been subject to steps
by the solicitor concerned to keep the information under his
control. That protection only applies to communications with
in-house "solicitors", which is deemed to exclude lawyers
having not completed a bar exam.
In contrast, the Swiss Supreme Court refused to extend the scope
of privilege to correspondence and advice from off-counsels,
whenever such correspondence is kept in the company's
The power to order house searches and seizures is one of the
substantial amendments of the Competition Act of 1 April 2004
(ACart). Under this investigative power, the Secretariat of the FCC
conducted its first dawn raids in 2006 and 2007. However, one issue
that remained to be clarified was the protection of documents
subject to professional privilege during house searches. Based on
precedents in criminal proceedings, the Secretariat considered that
privileged documents are excluded from seizure, provided that they
relate to the current investigation; the Secretariat was also of
the opinion that in-house lawyers were not subject to lawyers'
Off-counsels and their clients will no doubt be disappointed at
the Swiss Supreme Court's refusal to extend the scope of legal
privilege to correspondence held by the client in the context of
Swiss competition law. However, the Swiss Supreme Court's
findings in respect of the procedure to be followed by the FCC
during an investigation will provide some comfort.
Unlawful agreements to be held null and void
In a decision dated 12 June 2008, the Swiss Supreme Court
confirmed the view of many commentators that unlawful agreements
under the ACart are, in principle, entirely null and void. The
Swiss Supreme Court also ruled that, if either party has obtained
any service or other benefit from the other on the basis of such an
agreement, then the beneficiary shall make restitution to the
benefactor in accordance with the unjust enrichment rules of the
Swiss Code of Obligations.
FCC opens investigation against members of the
On 1 December 2008, the FCC opened an in-depth investigation
against the Geneva-based Association of Manufacturers and Suppliers
of the Cosmetic and Perfumery Industry (ASCOPA) for possible price
fixing. Members of ASCOPA include, amongst others, Chanel SA
Genève, Clarins SA, L'Oréal Produits de Luxe
Suisse SA, Parfums Christian Dior AG and Coty (Schweiz) AG.
The FCC said it had received a complaint that pricing
information could have been exchanged among members of ASCOPA.
The investigation has to show whether the sharing of information
between ASCOPA members has an impact on the competitiveness of the
members and whether it may constitute an unlawful agreement under
FCC opens investigation against distributors of door
On 8 December 2008, the FCC opened an investigation against
distributors of doors components (doorknobs, hinges, locks, etc.).
Those undertakings are suspected of having concluded agreements on
prices, discounts and price conditions. The investigation has to
show whether such agreements between distributors actually existed
and what effects they may have in the Swiss market.
In July 2007, the FCC had already opened an investigation in the
field of hardware for windows, doors and gates. During this
procedure, information on a new cartel has been brought to the
attention of the competition authorities. Under the ACart, if
undertakings voluntarily provide information or evidence regarding
a second, still-hidden, hard-core cartel, they are likely to enjoy
a reduction of fines by up to 80%.
FCC conducts searches and opens investigation
against undertakings active in the sanitation, heating and air
On 16 December 2008, the FCC opened an investigation against
several undertakings active in the field of sanitation, heating and
air conditioning products. Following a self-denunciation, the FCC
conducted searches and found indication that the undertakings
concerned may have exchanged information on prices, contemplated
price increases, discounts and sales turnovers for various
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