National Competition Law Report - Q3 - 2009

Author:Mr Silvio Venturi and Pascal Favre
Profession:Tavernier Tschanz
 
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Investigations

FCC imposes fines for collusive

tendering in electrical equipment sector

On 6 July 2009, the Competition

Commission (FCC) fined eight undertakings CHF 1.24 million for

collusive tendering in relation to private and public tenders for

electrical equipment in construction projects.

On 31 January 2008, the FCC launched

an enquiry into suspected anti-competitive practices in the

electrical equipment industry of the region of Bern by dawn raiding

the offices of the principal market participants. Following a

complaint, the FCC had indeed detected signs of market sharing in

the way tenders (including tender prices) for electrical equipment

in private and public construction projects were submitted, as well

as a sort of rotation of awards for electrical equipment works. The

FCC concluded that the undertakings concerned had participated in

hard-core restrictions and, thus, that they were liable to a fine.

The FCC fixed the fines in reference to the type, duration and

gravity of the infraction. The fact that all the undertakings

concerned discontinued their practice immediately after the launch

of the enquiry and applied for leniency treatment operated in

mitigation. The FCC also took into consideration the fact that the

undertakings accepted to reach an amicable settlement with the

FCC.

The FCC has power to fine

undertakings up to 10% of their turnover in Switzerland for the

past three years. However, pursuant to Article 49a(2) of the

Competition Act (ACart), the FCC operates a leniency programme,

which applies to restrictive agreements that are subject to fines

because they contain hard-core clauses that eliminate competition.

Full immunity from fines is available for the first undertaking

that reports its involvement in a qualified hard-core cartel and

delivers information enabling the Secretariat to start a regular

investigation, provided that among others such undertaking has not

instigated the cartel activity. A reduction in fines by up to 50%

is available, at any time in the procedure, to an undertaking that

does not qualify for full immunity, if and to the extent the

applicant cooperates with the investigation and ends its

involvement in the prohibited agreement at the time evidence is

provided.

This decision is notable in that it

is the first time that the FCC imposes fines for collusive

tendering. The FCC also confirmed a principle already developed in

a case dated 2007 that reaching an amicable settlement does not

rule out fines in respect of the infringement that took place

before the conclusion of the amicable settlement.

FCC opens investigation

in relation to credit card Domestic Multilateral Interchange

Fees

On 16 July 2009, the FCC initiated

an investigation into the Domestic Multilateral Interchange Fees

(DMIF) applicable to the four-party credit card payment...

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