Swiss Federal Administrative Court: Mere Attendance At One Cartel Meeting Is Not Sufficient To Find An Infringement

Author:Dr. Mani Reinert
Profession:Bar & Karrer

The Swiss Federal Administrative Court (FAC) has annulled a fine imposed by the Swiss Com- petition Commission (ComCo) against Immer AG (Immer) for allegedly participating in a cartel on door fittings. The FAC held that the fact that Immer had participated in one meeting with com- petitors which discussed prices was not sufficient to support a finding of a concerted practice.

Facts and Decision of ComCo

Immer distributes door fittings and participated in one meeting with other distributors of these products. At this meeting, among other things, the other distributors discussed and agreed wholesale margins. While, prior to the meeting, Immer had sensed that the other distributors would discuss prices, Immer did not realise that they would do so at this particular meeting. In a hearing before ComCo, Immer also stated that it had difficulties in following the discussion between the other distributors because it did not know the basis of their calculations. In the aftermath of the meeting, Immer did review its prices but did not change them.

ComCo argued that Immer had participated in a concerted practice to fix prices because Immer had attended the meeting without distancing itself from the discussions and had not notified the meeting to the competition authorities.

Judgment of Federal Administrative Court

The FAC rejected that reasoning. The FAC held that ComCo had neither established an agreement nor a concerted practice.

No Agreement

The FAC held that the finding of an agreement would require at least an implied statement of commitment to an agreement. Such statement, however, could in general not be derived from the mere silent attendance at one single meeting.

The FAC found no evidence of any intention by Immer to commit itself to the agreement of the other dealers. In that regard the FAC noted that the meeting covered other subject matters as well. The FAC further held that the invitation to the meeting (which included the agenda item "prices of brand products") could not be interpreted as an offer to agree on prices that were accepted by accepting the invitation to the meeting. Consequently, there was no agreement involving Immer.

Concerning the standard of proof, in earlier decisions (in the context of defining the relevant market and proving the existence of a dominant position), both the FAC and the Federal Supreme Court had held that where a full proof would not be possible due to the complexity of the economic facts and the lack of...

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