National Competition Law Report - Q3 2008

Author:Mr Silvio Venturi
Profession:Tavernier Tschanz
 
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Abuse of dominant position

ComCo fines

Documed

On 17 July 2008, the Competition Commission (ComCo) announced

that it has closed its investigation of Documed's practice in

relation to information on pharmaceutical products. Documed is a

subsidiary of Galenica, which is active in publishing information

about pharmaceuticals in Switzerland. It publishes, in particular,

the "Swiss Compendium of Pharmaceuticals". This contains

comprehensive information on pharmaceuticals intended for medical

staff and patients.

Documed has been subject to an investigation by the ComCo since

21 June 2005. Documed was suspected of abusing its dominant

position by forcing unreasonable prices from pharmaceutical

companies and refusing to enter into contract negotiations on the

provision of raw data regarding the pharmaceutical product

information to third parties.

The investigation has shown that Documed's practice was

discriminating against the information providers. In particular,

tariffs applied by Documed favored without objective reason

undertakings which provide an important quantity of information

(more than 90 products per year). By contrast, Documed has not been

found to have imposed unfair prices within the meaning of the

Competition Act.

With Documed's decision now to remove any form of

discriminatory treatment in its billing practice, the ComCo has

discontinued proceedings, whilst imposing a reduced fine on Documed

(CHF 50,000).

Under Swiss competition law, an undertaking that abuses its

dominant position may be fined up to 10% of its turnover in

Switzerland in the previous three business years. The assessment

criteria for imposing fines are set out in the Ordinance on

Sanctions. The fine may be fully or partially exempted if the

undertaking co-operates with the ComCo.

Merger Control

Competition Commission approves the

Heineken/Eichhof merger

On August 21, 2008, the ComCo approved the proposed acquisition

by Heineken of the drinks business of Eichhof Holding.

The ComCo held that they were no indications that the

concentration might create or strengthen a dominant position of the

Heineken/Eichhof group. It further held that the merger could not

lead to the market being collectively dominated by Heineken/Eichhof

and the biggest Swiss brewery, Carlsberg/Feldschlösschen. The

investigation revealed that there would still be sufficient

competition in the local and regional beer markets after the

takeover. It also revealed that there are no significant barriers

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