National Competition Law Report - Q2 2009 - Switzerland

Author:Mr Silvio Venturi
Profession:Tavernier Tschanz


FCC Publishes Its 2008 Annual Report

The Competition Commission (FCC) has published its 2008 annual

report1. According to the FCC, 2008 was a year of

activities designed to prevent distortions of competition. This

update summarizes the activities undertaken by the FCC during


The FCC has established contacts with procurement agencies and

major bodies in the field of public procurement. In a further

measure, the Secretariat of the FCC conducted external training

sessions for employees of federal procurement agencies in order to

raise their awareness of the issue of bid rigging.

In the course of advisory procedures, the FCC was able to

clarify and refine practices relating to recommended prices. It may

happen that trade associations and industry organizations induce or

encourage direct or indirect price-fixing agreements between their

members by issuing tariffs, recommended prices or price lists.

Descriptions of services or cataloguing services with tariffs or

prices are normally treated as price-fixing agreements. The FCC

held that at least two alternative instruments which comply with

the requirements of the Competition Act (ACart) are available to

the associations to this end. Services which are described without

details of tariffs or quantities do not fix prices and thus do not

restrict freedom to determine prices. The second permissible

practice is the publication of historical, survey-based and

aggregated figures. Such data must be accessible to consumers and

the tariffs must be non-binding. This data must be compiled and

published by independent third parties.

According to the FCC, 2008 was also notable for decisions in

individual cases that will have generally applicable practical

implications. From the groundbreaking Supreme Court decisions on

the Internal Market Act made in response to appeals by the FCC

relating to authorization procedures for practising a

profession2, it was possible to establish a precedent

with signalling effect for the whole of Switzerland. These

decisions also confirmed the importance of the power that allows

the FCC itself to appeal against cantonal decisions on market

access restrictions. The FCC has announced that it will make use of

this option in the future in order to resolve fundamental


With regard to direct penalties, the FCC imposed a fine on a

subsidiary of Galenica AG for its abuse of a dominant position in

connection with the publication of the medicinal products

compendium. In addition, the Secretariat requested that penalties

be imposed on Swisscom for its pricing policy in the field of ADSL

broadband internet. The Secretariat also conducted house searches

in several cases of possible hard price-fixing agreements. The

Secretariat continued ongoing investigations in 2008, and there

were disputes before the appeal courts over procedural issues in

several cases. According to the FCC, this regularly led to

proceedings being prolonged and additional resources being tied up.

The Federal Criminal Court and the Swiss Supreme Court have issued

clarifying decisions in relation to...

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