The statutory basis for challenging cartel behaviour is the Federal Act on Cartels and other Restraints of Competition (the “Cartel Act‟). The central provision for challenging cartel behaviour is Article 5 of the Cartel Act.

Articles 18 et seqq of the Cartel Act provide for public enforcement by the Competition Commission (COMCO) and its Secretariat. Articles 12 et seqq of the Cartel Act allow private plaintiffs to bring antitrust violations before the civil courts.

According to Article 49a of the Cartel Act, administrative sanctions (ie, fines) may be imposed on cartel participants. The details are set forth in the Ordinance on Sanctions imposed for Unlawful Restraints of Competition (the “Sanctions Ordinance‟). Swiss competition law does not provide for criminal sanctions against individuals for violations of substantive competition law.

In addition, abusive prices may be challenged under the Price Monitoring Act, which applies to prices that are not the result of effective competition.

Public Enforcement Agencies

Public enforcement of the Cartel Act is the responsibility of COMCO and its Secretariat. COMCO is a 12-member decision-making body. Its decisions are prepared by the Secretariat, which conducts investigations and, together with one member of COMCO′s presiding committee, issues the necessary procedural orders. The total headcount of the Secretariat amounted to 76 employees at the end of 2022.

The prevention or termination of abusive prices under the Price Monitoring Act is the responsibility of the Price Surveillance Officer (PSO) and his staff.

Scope of Liabilities, Penalties and Awards

In cases regarding cartels, COMCO may issue a declaratory decision and determine appropriate measures (eg, approval of an amicable settlement), including sanctions (ie, fines; see 4. Sanctions and Remedies in Government Cartel Enforcement). While the Cartel Act was conceived as an administrative act leading to administrative sanctions, it was confirmed by the Federal Supreme Court (judgment 139 (2012) I 72 – Publigroupe) that fines based on the Cartel Act are criminal in nature in terms of the European Convention on Human Rights (ECHR). Therefore, an investigation addressing sanctionable cartel behaviour must, in principle, comply with the rule of law guarantees as set forth in the ECHR.

Swiss competition law does not provide for criminal sanctions against individuals for violations of substantive competition law (see 4.4 Sanctions and Penalties Available in Criminal Proceedings).

Any person hindered by an unlawful restraint of competition from entering or competing in a market is entitled to request the following by way of private enforcement before the civil courts:

• the elimination of, or desistance from, the hindrance;
• damages and compensation in accordance with the rules of the Swiss Code of Obligations (CO); and
• forfeiture of unlawfully earned profits under the provisions on agency without authority.

According to the prevailing doctrine, only companies, not consumers, are authorised to bring these claims under the Cartel Act. Consumers may, however, bring claims under general tort law.

Cartel conduct is defined in Article 5 of the Cartel Act.

Agreements that significantly restrict competition in a market for specific goods or services and are not justified on the grounds of economic efficiency, and all agreements that eliminate effective competition, are unlawful (Article 5(1), Cartel Act).

The notion of agreement refers to binding or non-binding agreements and concerted practices between undertakings operating at the same or at different levels of production that have a restraint of competition as their object or effect (Article 4 (1), Cartel Act). A restriction of competition by object requires that the elimination or impairment of one or more parameters of competition (eg, price, quantity, territory, customers, supply) is part of the conduct (judgment B-8430/2010 (2014) – Paul Koch AG). A restriction of competition by effect exists if an agreement leads to the elimination or restriction of one or more parameters of competition, even though its content is not designed to do so (judgment B-3618/2013 (2016) – Hallenstadion).

Three types of agreement are presumed to lead to the elimination of effective competition if they are concluded between actual or potential competitors (horizontal agreements; Article 5(3), Cartel Act):

• agreements to directly or indirectly fix prices;
• agreements to limit the quantities of goods or services to be produced, purchased or supplied; and
• agreements to allocate markets geographically or according to trading partners.

In addition, the elimination of effective competition is also presumed in the case of vertical agreements regarding fixed or minimum prices (resale price maintenance) and the prohibition of passive sales in distribution contracts (Article 5(4), Cartel Act).

Even if the presumption of eliminating effective competition can be rebutted in a specific case, these agreements generally qualify as significant restrictions of competition, as confirmed by the Federal Supreme Court (judgment 143 (2016) II 297 – Gaba). Therefore, such agreements are admissible only if they can be justified on economic efficiency grounds – a justification that so far has rarely succeeded in practice. A public consultation by the Swiss government is currently examining whether this case law should be corrected by way of an amendment of the Cartel Act through the introduction of a requirement that a significant restriction of competition may only be affirmed after taking into account qualitative and quantitative criteria.

There are no sectors or industries exempt from public cartel enforcement actions per se. However, statutory provisions that do not allow for competition in a market for particular goods or services (eg, provisions that establish a state-controlled market or price system and provisions that grant special rights to specific undertakings (eg, a monopoly) to enable them to fulfil public duties) take precedence over the provisions of the Cartel Act (Article 3(1), Cartel Act). For certain industries, this may result in at least a partial exemption from the application of the Cartel Act (eg, in the public health sector).

According to case law (judgment B-831/2011 (2018) – SIX DCC; confirmed by the Swiss Federal Supreme Court in judgement 2C_596/2019)), the limitation period for the initiation of an investigation amounts to ten years from the time of the termination of the anti-competitive conduct. According to the same case law, the limitation period for enforcement also amounts to ten years and begins running once a decision by COMCO or an appellate body becomes final.

Regarding cartel conduct that is subject to sanctions (ie, fines), if at the time of the initiation of the investigation the relevant conduct has already been discontinued for more than five years, sanctions may no longer be imposed (Article 49a paragraph 3 litera b, Cartel Act).

The Cartel Act applies to private or public companies (“undertakings‟). Companies are all consumers or suppliers of goods or services active in commerce regardless of their legal or organisational form (Article 2(1) and (1bis), Cartel Act). Furthermore, companies must be economically autonomous; ie, not controlled by a third party (judgment B-8399/2010 (2014) – Siegenia-Aubi).

The Cartel Act applies to practices that have an effect in Switzerland, even if they originate in another country (Article 2(2), Cartel Act – effects doctrine). This provision is applied broadly. The Swiss Federal Supreme Court held that any behaviour that may have effects in Switzerland falls within the scope of application of the Cartel Act without further qualification of these effects (judgment 143 (2016) II 297 – Gaba). In a decision upholding the Gaba principle, the court stated that vertical agreements between American companies restricting exports to Canada did not come within the purview of the Cartel Act because competition in Swiss markets would neither actually nor potentially be restricted (judgment 2C_63/2016 (2017) – BMW). Case law still has to clarify the boundary between (relevant) potential and (irrelevant) purely hypothetical effects.

The principle of comity is not explicitly provided for in the Cartel Act. Where practices may have an effect in Switzerland, they are subject to the Cartel Act, and COMCO will generally apply the provisions of the Cartel Act, regardless of enforcement in other jurisdictions.

In 2014, an agreement between Switzerland and the EU relating to co-operation on the application of their competition laws entered into force (the “Co-operation Agreement‟). The Co-operation Agreement contains non-binding provisions on conflict avoidance (negative comity, Article 5), as well as on the opportunity to request the beginning or expansion of enforcement activities (positive comity, Article 6) (judgment B-5911/2014 (2017) – Air Cargo). Although there is not yet any published practice applying the Co-operation Agreement, COMCO has to consider these provisions when conduct is potentially subject to enforcement by the European Commission.

In a press release dated 26 March 2020, COMCO provided information on the application of competition law in Switzerland during the COVID-19 outbreak. The competition agency emphasised that, as a general rule, competition law was applicable in the usual manner. It specifically mentioned that it was co-ordinating its activities with other authorities with regard to excessive prices (eg, for face masks), but that the Cartel Act could only apply to the extent that there was illegal price fixing or abusive behaviour by dominant companies. On 1 April 2021, the Secretariat of COMCO opened proceedings against three distributors of COVID-19 self-tests for possible price fixing. The proceedings were later closed without consequences for lack of evidence of an unlawful restriction of competition. Both COMCO (eg, re Aéroport international de Genève) and its Secretariat (eg, re Skyguide) provided opinions in connection with COVID-19-related financial support measures.

Several changes in the regulatory environment took place in 2022/2023.

As of 1 January 2023, COMCO is headed by a new president, Dr Laura Baudenbacher, who replaced Dr Andreas Heinemann, after his term of office expired.

In addition, in October 2023, federal elections will be held in Switzerland which might bring some changes to the composition of parliament.

Public enforcement of competition law regularly starts with informal market observations by the Secretariat, which may lead to a preliminary investigation (also see 2.11 Leniency and/or Immunity Regime).

The Secretariat may conduct preliminary investigations ex officio, at the request of undertakings involved or in response to a complaint from third parties (Article 26, Cartel Act). The Secretariat investigates if there are indications of an unlawful restraint of competition. If there is no prima facie evidence to this end, the Secretariat closes the preliminary investigation regularly by way of a short report on the market and the undertakings concerned.

If there is prima facie evidence of an unlawful restraint of competition, the Secretariat, in consultation with a member of the presiding body of COMCO, may open a formal investigation (Article 27, Cartel Act). COMCO may also directly open an investigation. Moreover, the Secretariat is required to open an investigation whenever asked to do so by COMCO or by the Federal Department of Economic Affairs, Education and Research. Upon opening an investigation, the Secretariat collects evidence and proceeds to hearings. On this basis, the Secretariat writes a draft decision comparable to the European Commission′s statement of objections. It is then that COMCO formally decides, after having held further hearings with the parties.

Legal Basis and Requirements

The competition authorities may conduct surprise visits (“dawn raids‟); ie, searches without prior notice to be able to seize evidence (Article 42(2), Cartel Act).

A dawn raid requires a sufficient initial suspicion that competition law has been infringed, a likelihood of finding evidence where the inspection takes place and that the action is proportional to the suspected offence (judgments 2C_295/2021, 2C_307/2021 (2021) – Markant). It must be based on a written warrant signed by a member of COMCO’s presiding committee.

Dawn raids may be conducted at the companies’ premises, at the private residences of company employees or with regard to vehicles. Dawn raids are regularly conducted immediately upon the opening of a formal investigation.

Rights and Obligations of Companies

The companies concerned have the right to have a public officer present. Hence, the competition agency is generally accompanied by members of the police or other local authorities.

The companies concerned have a right to be represented by outside counsel during such a dawn raid. While legal literature argues in favour of a short grace period for outside counsel to arrive (eg, 30 minutes), the Secretariat considers it unnecessary to await the arrival of outside counsel before it starts the dawn raid.

In the context of a dawn raid, companies are not obliged to co-operate with the authority, but they are required to tolerate it. The Secretariat considers that the obligation to tolerate the dawn raid also comprises an obligation to open premises and provide passwords.

Seizure of Documents

In the context of a dawn raid, the Secretariat may seize hard copies of documents (although it will usually take copies only) as well as electronic documents and emails. As to the subject matter of the seized documents, the Secretariat considers it sufficient that they are potentially relevant for the investigation. At the same time, the scope of the seizure is limited by the principle of proportionality (requiring that the measure is suitable, necessary and reasonable to achieve the intended goal) and the attorney-client privilege (see 2.7 Attorney-Client Privilege).

Electronic documents and emails are regularly collected by way of “mirroring‟ (ie, by making a forensically valid copy of) the data on the company’s servers and computers of specific employees (custodians). For this purpose, members of the Secretariat are accompanied by IT forensics specialists (eg, of the police of the canton where the dawn raid takes place or of the federal police).

Shortly after the conclusion of the dawn raid, the company receives copies of all documents seized by the Secretariat. In the case of hard copies seized or copied, the company receives an electronic copy of scanned documents. With regard to electronic copies and emails seized by the Secretariat, the company receives its own copy of the mirrored data.

Interviews

The Secretariat may interview company employees during the dawn raid or thereafter. As to the form of the interview, the Secretariat distinguishes between interviewing parties of the investigation and interviewing witnesses. Formal corporate bodies of the company (in a corporation, in particular, members of the board) and senior management are interviewed as parties. All other employees and former employees are interviewed as witnesses.

The distinction is particularly relevant for whether the interviewee has an obligation to provide information. In the case of a party , the interviewee has a right to remain silent (but the Secretariat considers them obliged nevertheless to appear before the Secretariat). A person interviewed as a witness has an obligation to testify. In the case of lack of co-operation, a witness may be summoned to testify and/or may be fined in case of refusal to do so.

Interviews with employees usually occur at the premises of COMCO or, exceptionally, at the company′s premises or another place. In some cases, the Secretariat has requested that interviews with company employees be conducted on-site at the company′s premises or at a police station, during a dawn raid or very shortly thereafter. If the interviewee requests legal counsel to be present at the interview, the Secretariat normally grants a preparation time of no less than four hours after the commencement of the dawn raid.

If interviews are conducted, the Secretariat drafts minutes that have to be signed by the interviewee at the end. The interviewee receives a copy of the protocol.

It is a criminal offence to prevent a public authority from carrying out an act that is one of its official duties (Article 286, Swiss Criminal Code; see also 2.8 Non-cooperation With Enforcement Agencies). Spoliation of evidence by removing, destroying or deleting potentially relevant information may meet the elements of this offence.

Moreover, the Secretariat may take a (potential) spoliation of evidence into account as an aggravating factor when determining an undertaking’s fine.

Right to Counsel

Companies and individuals (officers, employees) affected by enforcement measures have a right to be represented and accompanied by counsel.

Multiple Representation

Counsel may potentially represent both individuals (eg, officers or employees of the company) and the company, provided that such fact is disclosed to all parties and there is no conflict of interest. It is generally advisable to seek independent legal advice for individuals and the company as there may be conflicts of interest. The Secretariat considers it generally inadmissible that company counsel at the same time acts as individual counsel of the interviewee.

Principal Initial Steps

External counsel commonly take the following steps when asked to assist a client in a dawn raid:

• ask for verification and copies of the search warrant, as well as the identities of the inspectors;
• make sure the employees do not prevent or impede the search; and
• make sure the inspectors are granted access while being accompanied.

Counsel also needs to assess whether the company should file a leniency application quickly. If a leniency application (marker) is being made, the undertaking immediately has to co-operate fully with the competition authorities to have the benefits of leniency (see 2.11 Leniency and/or Immunity Regime).

Furthermore, external counsel needs to make sure all documents that may not be seized are duly sealed, eg, if they are subject to the attorney-client privilege (see 2.7 Attorney-Client Privilege) or personal secrecy laws (such as files on employees).

Interviews

Counsel may also attend interviews. According to the Secretariat, the attorney may not provide answers in place of the respondent, but an attorney may, for example, ask supplementary questions. The Secretariat, therefore, routinely requests counsel be seated behind the interviewee rather than next to them to avoid the answers of interviewees being influenced by counsel.

Procedure for Obtaining Evidence

Documentary evidence or testimony may be obtained through dawn raids, requests for documents or information to companies (eg, questionnaires requesting information on specific conduct or, more generally, on the market), or through interviews.

Procedural Requirements

Parties to agreements, undertakings with market power and affected third parties must provide the competition authorities with all information required for their investigations and produce the necessary documents (Article 40, Cartel Act).

The obligation to produce documents principally applies to all documents relevant for the investigation of competition authorities. This obligation is limited by the principle of proportionality and by privileges (attorney-client privilege, the privilege against self-incrimination; see 2.7 Attorney-Client Privilege).

In the opinion of the Secretariat, the competence of the competition authorities to seize documents or other evidence during a dawn raid pertains to all evidence accessible on the premises of the company subject to the dawn raid (“accessibility principle‟). Therefore, electronic documents may also be seized if they are located on servers abroad, provided they can be accessed from the company’s premises. The same principle is, in practice, applied to the scope of documents to be produced by companies.

A further-reaching obligation to produce documents that are not accessible from Switzerland applies when the company has filed for leniency and thus must co-operate fully with the competition authorities.

Outside Counsel/In-House Counsel

The attorney-client privilege applies to a company’s external counsel authorised to represent parties in front of courts in Switzerland. It does not apply to a company’s in-house counsel.

Relevant Documents

Any objects and documents pertaining to the communication between a company and its external counsel may not be seized and need not be produced by the company (attorney-client privilege). The attorney-client privilege applies to objects and documents regardless of where they are located (ie, including documents located on the premises of the company).

Sealing

Where the existence or extent of legal privilege is in dispute, a company may request that the document(s) in question be sealed, pending a decision of the Federal Criminal Court on whether it may be seized and analysed. In the view of the Secretariat, it remains permissible that they make a summary assessment of the document to evaluate the existence of legal privilege.

Other Privileges

The obligation of a company to produce documents and of interviewees interviewed in the form of party examination to provide information is further limited by the privilege against self-incrimination (nemo tenetur principle), where proceedings relate to sanctionable cartel behaviour and thus qualify as criminal proceedings under the ECHR (see 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards). However, the scope of the privilege against self-incrimination has not yet been fully determined by the Federal Supreme Court.

In the case of a witness examination, the right to refuse to provide information applies only where the interviewee would risk criminal prosecution, a severe reputational disadvantage or proprietary damage for themselves or close relatives (as to the distinction between party and witness examination, see 2.2 Dawn Raids).

Individuals and firms commonly comply with requests for documents or information, potentially after discussion with the Secretariat on adequate limitations of the request. If a company does not comply with a request for a document or information, it may be fined up to CHF100,000 and the responsible individual up to CHF20,000.

In general terms, evidence that forms part of the investigation (other than evidence submitted by a potential leniency applicant) is available to all parties to COMCO′s investigation, which may also include companies that did not, allegedly, participate in the cartel. However, the competition authorities are bound by the rules on official secrecy (Article 25(1), Cartel Act). Companies can thus claim confidentiality with respect to specific facts constituting business secrets, also vis-à-vis other parties to the investigation. The mere involvement in an infringement of competition does not constitute a business secret.

Due to the lack of precedent, it is not clear whether a plaintiff who was not a party to COMCO′s investigation may successfully demand the disclosure of evidence collected through investigative powers in civil antitrust proceedings – eg, for damages.

In a set of bid-rigging decisions, the Federal Supreme Court and the Federal Administrative Court granted public authorities (cantons and municipalities) limited access to the investigation file. File access was granted to the extent necessary for the authorities to assess potential sanctioning under procurement law or the enforcement of damage claims and did not include the file of the leniency applicant (judgments 2C_1039/2018, 2C_1040/2018 (2021) – Canton of Aargau; judgment A-6315/2014 (2016) – Municipality of Meilen; judgments A-6320/2014 and A-6334/2014 (2016) – Canton of Zurich). According to Federal Supreme Court case law, it is not a prerequisite for granting access to the file that the cartel decision has become legally binding because antitrust cases can be complex and often take longer to conclude than the absolute limitation period of ten years, which is relevant for private plaintiffs (judgments 2C_1039/2018, 2C_1040/2018 (2021) – Canton of Aargau).

Special rules apply to the access to information submitted by a leniency applicant (as to leniency, see 2.11 Leniency and/or Immunity Regime). If a leniency application is not anonymous, confidential treatment is usually afforded to the applicant, at least until an investigation has been opened and dawn raids have been conducted. At a certain point in the investigation, possible (co-)defendants will be entitled to due process and will, therefore, be granted access to the file. In practice, the Secretariat grants access to the file of the leniency applicant only on its premises and does not allow any copies to be made. This occurs at the latest when the draft decision (statement of objections) is issued. At this stage of the investigation, the identity of the leniency applicant will become known to the parties to the investigation. Once the decision of COMCO is published, the identity of the leniency applicant will become publicly known, at least indirectly, because no fine is imposed on the leniency applicant.

Defence counsel may raise legal and factual arguments towards the competition authorities throughout the investigation proceedings (or a potential preliminary investigation). In particular, defence counsel has a right to consult and comment on the case files, to suggest hearings of the party and witnesses and participate in such hearings. Defence counsel may comment on the draft decision that the Secretariat produces based on the investigation and a potential hearing summoned by COMCO.

Legal Basis and Outline

The Cartel Act provides for a leniency regime based on Article 49a(2) of the Cartel Act and is specified in detail in the Sanctions Ordinance.

As a general principle, a sanction (ie, a fine) may be waived or reduced by COMCO if an undertaking assists in the discovery and elimination of the restraint of competition.

Full Immunity

In order to receive full immunity, an undertaking must:

• report its own participation in a restraint of competition (in the sense described in Article 5(3) and/or 5(4) of the Cartel Act); and
• must be the first undertaking:
1. to provide information that enables COMCO to open an investigation; or
2. to provide evidence that enables COMCO to establish a restraint of competition in accordance with Article 5(3) or 5(4) of the Cartel Act (Article 8(1), Sanctions Ordinance).

Immunity is granted only if the company:

• has not coerced any other undertaking into participating and has not played the instigating or leading role;
• voluntarily submits to COMCO all available information and evidence within its sphere of influence;
• continuously co-operates with COMCO throughout the procedure, without restrictions or delay; and
• ceases its participation in the infringement upon submitting its leniency application or upon being ordered to do so (Article 8(2), Sanctions Ordinance).

Partial Reduction of the Fine

Full immunity from fines is granted only to the first company reporting to COMCO. For “second-in-the-door” companies and latecomers, a reduction of the fine by up to 50% is available if a company voluntarily co-operates in a proceeding and, at the time the evidence is submitted, has ceased participation in the anti-competitive practice (Articles 12(1) and 12(2), Sanctions Ordinance). The importance of the company′s contribution to the success of the proceedings is decisive in determining the amount of the reduction of the fine.

Besides, a reduction of the fine by up to 80% is available if a company voluntarily provides information or submits evidence on further infringements on competition in accordance with Articles 5(3) and (4) of the Cartel Act (Article 12(3), Sanctions Ordinance).

The company seeking a reduction of the fine must submit to COMCO all necessary information on the reporting company itself, on the nature of the reported infringement of competition, on the other companies participating in the infringement of competition and on the affected or relevant markets (Article 13, Sanctions Ordinance).

There is no limit to the number of companies eligible for a reduction of the fine. Accordingly, in principle, not only is the “second-in-the-door” company eligible for a reduction of the fine, but this principle applies to any other reporting company that fulfils the conditions. However, since the reduction depends on the company′s contribution to the success of the investigation, in general, it is unlikely that companies co-operating at a later stage of the proceedings (when COMCO may already have sufficient information) will be able to profit from a substantial reduction, if any.

Therefore, there is ex ante transparency with regard to the conditions for a reduction in the fine and the range of the reduction, but not the specific reduction that will ultimately be granted.

Marker

In practice, the Secretariat accepts relatively general information for a marker (without evidence being submitted), provided that the company subsequently provides further, more detailed information and specifies its leniency application. The marker may also be submitted electronically via COMCO’s website. In the view of the Secretariat, the marker needs to contain, as a minimum, the following:

• contact details for the undertaking applying for immunity;
• a statement that the undertaking co-ordinated its behaviour with that of other undertakings with the object and/or effect of restraining competition in any way;
• a statement that the undertaking intends to submit a voluntary report;
• indications about the restriction of competition that could be identified with reasonable effort at the moment it applied for the marker; and
• the date and signature.

Following receipt of the marker, the Secretariat sets the undertaking a deadline to submit its voluntary report.

The Cartel Act provides that agreements that have been declared unlawful by the competent authority may be permitted by the Federal Council, the national executive, at the request of the parties involved if they are necessary in exceptional cases to realise overriding public interests (Article 8 of the Cartel Act). There have so far only been two such requests (both in the area of horizontal agreements), neither of which was successful.

The Secretariat may interview company employees. All formal corporate bodies of the company and higher management are interviewed in the form of party examination, which means they can refuse to provide information. All other employees and former employees are interviewed in the form of witness examination and thus principally have an obligation to provide information (see 2.2 Dawn Raids). According to the Federal Supreme Court, this includes former directors and officers of companies under antitrust investigation, who, therefore, may be examined as witnesses (judgment 2C_383/2020 (2021) – A. AG).

Parties to agreements, undertakings with market power and affected third parties are obliged to provide the competition authorities with all the information required for the investigation and produce the necessary documents. The obligation is limited by the principle of proportionality, the attorney-client privilege and the privilege against self-incrimination (see 2.7 Attorney-Client Privilege).

The obligation under the Cartel Act to provide the competition authorities with the requested information and to produce requested documents is not explicitly limited to companies located in Switzerland. However, any measures taken against the refusal to provide requested information or documents will, in practice, be unenforceable where a company is located outside (and does not have any presence in) Switzerland. In practice, the Secretariat has sent information requests both to foreign companies directly and to their Swiss subsidiaries.

The Secretariat as the investigating body is separate from COMCO as the decision-taking body. In practice, the two authorities regularly interact as, for example, a member of COMCO′s presiding committee needs to approve the opening of an investigation or the conduct of a dawn raid. No rules limit the exchange of information between COMCO and the Secretariat.

In view of the interactions between COMCO and the Secretariat, concerns have been voiced that the separation between the investigating body and the deciding body is mere theory and that COMCO does not exercise effective judicial control over the Secretariat.

There is no general legal framework that would allow COMCO to co-operate with foreign competition authorities, but there are several specific agreements on international co-operation in force. Most importantly, Switzerland and the EU are parties to an agreement relating to co-operation on the application of their competition laws (the “Co-operation Agreement‟), which entered into force in 2014. The Co-operation Agreement is a second-generation agreement in that it allows, inter alia, the transmission of information and documents between COMCO and the European Commission even without the consent of the company concerned.

There are three further agreements on international co-operation in existence. An agreement between Switzerland and the European Community on air transport, dated 21 June 1999, provides for co-operation of COMCO with the EU authorities. Also, free trade agreements between Switzerland and Japan (concluded in 2009) and between Switzerland and China (concluded in 2013) contain basic provisions for co-operation between the competition authorities of the contracting countries. In addition, in November 2022, COMCO signed a co-operation agreement with the Federal Republic of Germany, which is modelled on the existing agreement with the EU, and in addition allows the competition authorities of one country to directly serve administrative orders onto the parties in the other country via the local competition authority. The agreement with Germany is still in the approval and ratification process and will not enter into force before the second half of 2023.

Finally, COMCO has regular contact with foreign competition authorities on a general, non-case-specific basis; eg, in the framework of the International Competition Network.

Public enforcement of competition law is implemented in administrative proceedings, even though the sanctions imposed qualify as criminal in nature under the ECHR. As to the steps of the administrative proceedings, see 2.1 Initial Investigatory Steps.

Civil enforcement of competition law in Switzerland is limited to private civil litigation (see 5. Private Civil Litigation Involving Alleged Cartels for further details on private civil litigation).

Enforcement actions are regularly brought against multiple parties in single proceedings, and COMCO takes a decision in a single order. If one party enters a settlement with COMCO during pending proceedings, proceedings will be closed for that party separately with a partial order and continued for the other parties (so-called sequential hybrid proceedings).

According to the inquisitorial principle, which applies in administrative proceedings in general and investigations into cartel behaviour in particular, the competition authorities and the courts have to investigate the facts ex officio. They bear the burden of proof for the alleged cartel behaviour.

As the sanctions (ie, fines) of the Cartel Act are criminal in nature (see 1.2 Public Enforcement Agencies and Scope of Liabilities, Penalties and Awards), the procedural guarantees of Articles 6 and 7 of the ECHR (and of Articles 30 and 32 of the Swiss Federal Constitution) apply. Accordingly, the standard of proof to be discharged in cartel cases that may lead to the imposition of a fine is “proof beyond reasonable doubt‟. This is the case, in particular, for the types of horizontal agreements set forth in Article 5(3) of the Cartel Act and the types of vertical agreements described in Article 5(4) of the Cartel Act (see 1.4 Definition of “Cartel Conduct”). With respect to market definition and questions of substitutability, which require proof of complex factual circumstances, the Federal Supreme Court ruled that the requirements for proving such connections must not be overstated because exact proof would hardly be possible (judgment 139 (2012) I 72 – Publigroupe).

In cartel cases that may not lead to the imposition of a fine (ie, unlawful agreements in the sense of Article 5(1) of the Cartel Act that do not fall under the types of agreements set forth in Articles 5(3) or 5(4) of the Cartel Act), COMCO considers that a lesser standard of proof of “preponderance of the evidence” applies.

In public enforcement proceedings, the Secretariat acts as the fact-finding body and conducts the investigation. It presents a draft decision to COMCO, which issues the order and applies the law to the facts.

It has not been decided whether and under what circumstances a third party that was not part of the investigation of COMCO may claim disclosure of evidence of such investigation for the purpose of private civil litigation. COMCO is under no express obligation to co-operate and provide assistance to civil courts. In principle, such a claim could be based on the rules of document production under the Code of Civil Procedure or the right of information under the Data Protection Act.

In a special setting, the Federal Supreme Court and the Federal Administrative Court granted public authorities (cantons and municipalities) limited access to the investigation file. File access was granted to the extent necessary for the authorities to assess potential sanctioning under procurement law or the enforcement of damage claims and did not include the file of the leniency applicant (judgments 2C_1039/2018, 2C_1040/2018 (2021) – Canton of Aargau; judgment A-6315/2014 (2016) – Municipality of Meilen; judgments A-6320/2014 and A-6334/2014 (2016) – Canton of Zurich).

Special rules apply to access to the information submitted by a leniency applicant. COMCO aims to protect such information to maintain the companies′ incentives to submit leniency applications intact, therefore, strictly limiting the access to such information.

Under Swiss law, the principle of free appraisal of evidence applies in that there are no formal rules regarding the evidentiary value of certain means of proof. Limits arise under the constitutional right of due process of law, according to which – eg, competition authorities must not rely on means of proof that have not been made accessible to the companies concerned.

In competition proceedings, experts relied upon are regularly economists. External economists may provide reports on behalf of parties subject to an investigation into cartel conduct. Such reports are regularly commissioned in relation to whether allegedly competitive behaviour had the effect of restricting competition, whether such effect was significant, or whether a significant effect may be justified on the grounds of economic efficiency. COMCO has issued guidelines for such economic expert reports.

The taking of evidence by the competition authorities is subject to the attorney-client privilege and, in proceedings that may lead to fines for the undertakings concerned, the privilege against self-incrimination (see 2.7 Attorney-Client Privilege).

It is within the discretion of the competition authorities whether or not to divide up related facts into different proceedings. By way of example, investigations into bid rigging of construction companies in the canton of Graubünden have been divided up into several proceedings according to the geographic scope of the alleged cartel, although the same companies are (in part) affected.

Sanctions are imposed by COMCO, the decision-making authority. The Secretariat assists COMCO in the preparation of its decision but cannot itself impose sanctions.

Amicable Settlement

If the Secretariat considers that a restraint of competition is unlawful, it may propose an amicable settlement to the companies involved concerning ways to eliminate the restraint (Article 29(1), Cartel Act). The amicable settlement is to be formulated in writing and approved by COMCO (Article 29(2), Cartel Act). The instrument of an amicable settlement is often used in practice.

An amicable settlement under Swiss law is broadly comparable to an EU type of settlement (but more important in practice), rather than the US style of plea bargaining. The Secretariat proposes the wording for a settlement, particularly, the wording for certain commitments of the company in respect of compliance with competition law in the future. In addition, the settlement generally contains the range of fines that the Secretariat will ask COMCO to impose.

Upon its conclusion, the amicable settlement is binding on the company but becomes effective only when approved by COMCO. The breach of an amicable settlement is subject to a fine for the company (of up to 10% of its Swiss turnover in the preceding three financial years) and criminal sanctions for the responsible individual (a fine of up to CHF100,000).

“Plea Bargaining”

While actual “plea bargaining” does not exist in Switzerland, discussions with the Secretariat may nevertheless be used by companies to discuss a reduction of the fine that the Secretariat will request that COMCO impose in return for commitments of the parties and at least an implicit acknowledgement of the unlawfulness of the conduct under discussion. In practice, reductions of the fine of up to 40% have been granted. Furthermore, the Secretariat, at least implicitly, expects that the company will not submit an appeal against COMCO′s decision confirming the amicable settlement.

The establishment of cartel behaviour by COMCO does not have any legally prejudicial effect upon potential private civil litigation. However, it is conceivable that there is a relevant factual effect of prejudice if a decision of COMCO establishing cartel behaviour has become final and binding.

According to the Swiss Public Procurement Act, a procuring authority may exclude companies from a procurement procedure or delete them from a list of qualified companies in the event of cartel conduct. Furthermore, several cantonal procurement acts provide for a possible ban of several years for companies having committed illegal cartel conduct.

Sanctions for Cartel Conduct

Administrative sanctions (fines) – qualifying as criminal sanctions in the meaning of the ECHR – can be imposed on companies for participation in an unlawful agreement pursuant to Article 5(3) and/or 5(4) of the Cartel Act (Article 49a(1), Cartel Act). The Cartel Act does not provide for sanctions for individuals having participated in such conduct.

The maximum amount of the fine is 10% of the (group) turnover achieved by the company (and its group) in Switzerland in the preceding three financial years (Article 49a(1) and Article 50, Cartel Act). In determining the amount of the fine, due account has to be taken of the profit likely to have resulted from the unlawful behaviour (Article 49a(1) and Article 50, Cartel Act).

The actual amount of the fine is calculated as follows (Sanctions Ordinance, Article 2 and following, in detail): a so-called basic amount is set at up to 10% (in most cases decided by COMCO, it is 5% to 7%) of the turnover in the affected relevant markets in Switzerland during the preceding three financial years. This basic amount can be increased depending on the duration of the infringement. It is further increased in the case of aggravating circumstances and reduced in the case of mitigating circumstances. However, in no case is the fine to exceed the maximum amount described in the preceding paragraph.

Further Administrative Sanctions

Administrative sanctions can be imposed for the breach of an amicable settlement, a final and non-appealable ruling of the competition authorities, or a decision of an appellate body (Article 50, Cartel Act).

COMCO may further impose an administrative sanction of up to CHF100,000 on a company that does not entirely fulfil its obligation to provide information or produce documents (Article 52, Cartel Act).

Criminal Sanctions

Criminal sanctions can be imposed on the responsible individual(s) for wilful violations of an amicable settlement, a final and non-appealable ruling of the competition authorities or a decision of an appellate body (a fine not exceeding CHF100,000) (Article 54, Cartel Act). In addition, company employees who wilfully do not comply completely with a ruling of the competition authorities in respect of the obligation to provide information will be liable to a fine not exceeding CHF20,000 (Article 55, Cartel Act).

Civil enforcement of competition law in Switzerland is limited to private civil litigation (see 5. Private Civil Litigation Involving Alleged Cartels).

There is no statutory provision establishing that the existence of a compliance programme affects the level of a fine. While legal literature proposes that its existence should be taken into account as a mitigating factor, COMCO has, in its practice, been reluctant to do so, which has so far not been overruled by the courts.

There is no basis for sanctions to extend to mandatory consumer redress.

Federal Administrative Court

Decisions by COMCO (or, exceptionally, by the Secretariat) are subject to judicial review by the Federal Administrative Court upon appeal within 30 days of receipt. This appeal can be filed either by:

• the company (eg, a cartel member) in the case of a finding against it; or, exceptionally,
• a third party who:
1. has participated or been refused the opportunity to participate in the proceedings before COMCO or the Secretariat;
2. has been specifically affected by the decision; and
3. has an interest worthy of protection in the revocation or amendment of the decision.

The Federal Administrative Court has full jurisdiction to review COMCO′s findings of fact, legal assessment and sanctions/penalties under all aspects of fact and law. However, the Federal Administrative Court exercises restraint with regard to the review of technical factual questions. The Federal Supreme Court accepts this restraint and considers it compatible with the procedural guarantees of the ECHR (see 3.9 Burden of Proof).

Federal Supreme Court

The decision of the Federal Administrative Court is subject to a further appeal to the Federal Supreme Court within 30 days. This appeal can be filed:

• by the company, in the event of a finding against it;
• by a third party, if the requirements set out above are fulfilled; or
• by the Federal Department of Economic Affairs, Education and Research, if the Federal Administrative Court has revoked the decision by COMCO.

The Federal Supreme Court can review the appeals decision of the Federal Administrative Court only with respect to its conformity with the law. It is bound by the facts established before the Federal Administrative Court unless they are manifestly incorrect or have been determined to violate legal provisions.

Federal Criminal Court

Decisions relating to the unsealing of documents that were seized in a dawn raid and subsequently sealed upon the company’s request belong to the jurisdiction of the Federal Criminal Court, at the request of the Secretariat. This decision is subject to an appeal before the Federal Supreme Court.

Claims

A party that is hindered by an unlawful restraint of competition from entering or competing in a market is entitled to request:

• the elimination of, or desistance from, the hindrance;
• damages and satisfaction in accordance with the general provisions of the CO; and
• the surrender of unlawfully earned profits in accordance with the provisions on agency without authority (Article 12(1), Cartel Act).

Regarding damages, based on general principles of Swiss law, a tort law claim for damages based on Article 41 of the CO requires the following elements to be fulfilled:

• an unlawful act by the liable party (eg, a cartel member);
• damage suffered by the claiming party (eg, a customer);
• a causal connection between the wrongful act and the damage; and
• the fault of the liable party (at least negligence).

All elements have to be proven by the claiming party. Claimants in a civil damage claim can ask for compensatory damages (ie, compensation for losses and forgone profits caused by the cartel). Punitive damages (ie, damages in excess of the actual damage incurred by the claimant) are not provided for in Swiss law. Pursuant to Swiss principles on the conflict of laws, punitive damages may not be awarded by Swiss courts even if a claim based upon a restraint of competition is subject to a foreign law that provides for punitive damages (Article 137(2) of the Federal Act on Private International Law).

Standing

Claims in competition law matters may be brought by companies. Conversely, it is generally considered (although no precedents are known in this respect) that end customers – in particular, consumers – have no standing to sue. A public consultation by the Swiss government is currently examining whether, by way of an amendment of the Cartel Act, end customers should also be granted the right to bring claims.

There is no threshold requirement for a civil action based on alleged cartel behaviour. Proceedings in competition law matters are initiated with the submission of the statement of claim at the competent court.

Jurisdiction

The local jurisdiction of courts in Switzerland for competition law matters is determined according to the general rules for civil proceedings. Jurisdiction differs depending on whether the matter qualifies as an international or national case and whether claims are made under tort law or contract law.

As regards substantive jurisdiction, the Swiss Code of Civil Procedure provides that every canton has to determine one court where competition matters are heard. In cantons with a commercial court (Zurich, Berne, Aargau and St. Gallen), this court is competent for competition law matters. In all other cantons, competition law matters are to be brought before the cantonal appellate court.

Remedies

Under both private civil litigation and administrative proceedings, elimination of, or desistance from, the restraint of competition may be ordered. Administrative proceedings may lead to fines with a deterrent effect, while financial relief under civil litigation is limited to compensation of actual damage or surrender of actual profits.

Practical Relevance

Civil enforcement of competition law has so far played a limited role in Switzerland for a number of reasons: a private claimant may instigate proceedings only on its own behalf, bears the burden of proof and the financial risk (court costs, compensation of the defendant, their own attorneys′ fees) if they lose a civil claim, and faces considerable evidentiary hurdles to prove the cartel behaviour.

There are few cases relating to civil damage claims due to the notoriously difficult proof of the damage and a causal nexus between the wrongful act and the damage. Claims as to elimination of, or desistance from, cartel behaviour that do not require such proof are somewhat more common but still rather limited.

Swiss law does not offer means of collective redress, either in the form of genuine “class actions” or actions brought by consumer groups or other institutional organisations representing specific interest groups, unless they have been assigned the claims of individuals.

Indirect purchasers can bring a damage claim unless they qualify as consumers (see 5.1 Private Right of Action).

While there are no known precedents to date, it is generally considered that defendants (eg, participants in a cartel) may raise a “passing-on‟ defence against claims brought by direct purchasers. Since consumers are generally considered to have no standing to sue, it is possible that defendants will not be liable for civil damages if the increased price was passed on by the direct purchasers.

The general rules of document production in civil procedure apply to evidence from administrative investigations or proceedings into cartel behaviour. Under Swiss law of civil procedure, there is no pre-trial discovery, as known in common law jurisdictions. The court will order a litigant or a third party to produce documents requested by a party where, in particular, the documents are sufficiently described. This is often a significant hurdle for claimants in cartel matters, as they have not been involved in the administrative proceedings and thus cannot specifically describe potential documentary evidence of cartel behaviour.

There are no figures available for the settlement quota for competition law matters. As a general proposition, settlement is fairly common in Switzerland – eg, approximately 65% of all cases are settled at the Commercial Court of Zurich.

Attorneys for successful claimants are compensated in that the court obliges the losing defendant(s) to repay the prevailing claimant for the cost of party representation. In contrast to court costs, the compensation of parties is not determined ex officio; the court awards party compensation only on request.

Each canton has its own tariff normally based on the amount in dispute and the complexity of the proceedings. The compensation, therefore, varies from canton to canton.

Generally, the losing party must bear procedural costs. Procedural costs consist of court costs (judgment fee, costs of evidence-taking) and party costs (costs of legal representation and expenses; see 5.6 Compensation of Legal Representatives). The amount of procedural costs is based on the applicable tariff. Each canton has its own tariff that is normally based on the amount in dispute and the complexity of the proceedings. Procedural costs thus vary from canton to canton.

The decision of the court of first instance (see 5.1 Private Right of Action) may be appealed to the Federal Supreme Court. The grounds for appeal are limited to infringements of federal law, international public law and constitutional law. The Federal Supreme Court is bound by the facts established by the court of first instance unless they are manifestly erroneous. As a general proposition, new facts and evidence may not be submitted.

There is no other pertinent information.

COMCO and the Secretariat have published a number of communications and guidance documents relating to cartel conduct and enforcement, partly available in English.