Swiss Federal Supreme Court Rules On The In Dubio Pro Reo Principle And Horizontal Price Fixing Agreements

Author:Dr. Mani Reinert
Profession:Bar & Karrer

The Swiss Federal Supreme Court (FSC) has annulled two judgments of the Swiss Federal Administrative Court (FAC) in the mountings for windows and window doors case. Referring to the in dubio pro reo principle, the FAC had held that the Swiss Competition Commission (Com- Co) had failed to prove an agreement to fix prices. The FSC, however, ruled that the FAC had not taken evidence of all relevant facts for which reason the in dubio pro reo principle would not apply. In addition, the FSC held that agreements among competitors to fix prices would in general restrict competition significantly.

ComCo's decision

In 2010 ComCo fined, amongst others, Siegenia- Aubi AG (Siegenia-Aubi) and Koch AG (Koch) for allegedly participating in agreements to increase prices in 2006/2007. ComCo's investigation had been triggered by the same leniency applicant as the mountings for windows and window-doors investigation of the European Commission (EC).

Judgment of the FAC

In 2014 the FAC annulled the decision of ComCo. The FAC held that ComCo had not established whether the price increases in Switzerland had been caused by the information exchange between the Swiss subsidiaries or by the dictate of their European parent companies (which were parties to the EC's investigation) which were involved in the European cartel. After having conducted hearings, the FAC concluded that it could not fill all the gaps in the evidence at the expense of the appellants as this would infringe the principle in dubio pro reo.


In dubio pro reo is only applicable if evidence is taken of all relevant facts

In its judgments of 9 October 2017¹, the FSC disagreed with the FAC's conclusion. The FSC held that the FAC has full jurisdiction on questions of facts and law. The principle of in dubio pro reo could only be applied if evidence had been taken of all relevant facts. The FSC held that the FAC had not done so. The FSC held that the FAC could not content itself with stating that ComCo had not established all relevant facts. Instead, the FAC had to take evidence of all facts to the extent ComCo had failed to do so. The FSC concluded that the FAC had failed to take evidence on all relevant facts. The FSC, therefore, annulled both judgments of the FAC and ordered the FAC to establish the facts.

Price fixing generally restricts competition Significantly

The FSC also held that price fixing agreements among competitors would 'generally' restrict competition significantly...

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