Investigations typically begin with market observations, preliminary investigations, complaints, notifications by foreign competition authorities (in particular the European Commission and the German Federal Cartel Office) or leniency submissions.

The ComCo Secretariat actively monitors and analyses a wide range of markets and may launch investigations on its own initiative where there are indications of anti-competitive behaviour. In particular, it has developed a screening tool designed to identify potential bid rigging practices using data supplied by public procurement authorities.

A preliminary investigation is an informal procedure conducted by the ComCo Secretariat that may precede the opening of a formal investigation. Its purpose is to examine whether there are initial indications of potentially unlawful restrictions of competition. If suspicions are confirmed, the Secretariat opens a formal investigation with approval from ComCo’s presiding body.

The ComCo Secretariat has the power to conduct dawn raids in order to search for and seize evidence relevant to competition law investigations. Dawn raids are a well-established and frequently used investigative tool in Switzerland.

Dawn raids require a search warrant issued by a member of ComCo’s presiding body.

The competition authorities may inspect business premises and private residences, premises of the investigated party and third parties, containers (eg, cupboards, safes, desks), spaces (eg, offices, storage rooms, parking lots), and vehicles on-site. Further, the competition authorities may search and seize paper documents, electronic records (including emails, chats, calendars, photos, videos and audio files) and any data accessible from the premises, even if stored remotely (eg, in the cloud or on a server abroad). While the authority has the right to seize original documents and data carriers, in practice the ComCo Secretariat prefers to scan or copy paper documents and to create forensic images (digital duplicates) of electronic data on-site. As a general practice, electronic data is not reviewed on-site. It is secured and reviewed later at the authorities’ offices by using forensic tools.

Companies and individuals must provide access to business premises, IT systems and data (including cloud stored information). While the company is not obliged to take any active steps, it must passively tolerate and must not obstruct the investigative actions of the competition authorities. The obligation to tolerate the search means that, during the inspection, the company has only limited or no access to documents, premises, or computer systems.

If the company resists the inspection, the measures may be enforced by force, for example by breaking open locked doors and cabinets. Individuals who destroy, delete, or remove evidence may be subject to criminal liability under Article 286 of the Swiss Criminal Code and penalised by a substantial fine. In addition, ComCo may take such conduct into account as an aggravating circumstance when imposing sanctions on the company.

Officers and employees may be interviewed on-site, although members of governing bodies (such as board members) and de facto decision-makers may refuse to answer questions that would involve self-incrimination. For further details, see 2.5 Obtaining Evidence/Testimony.

During a dawn raid, companies or individuals may object to certain documents or data being searched. If so, the materials are sealed and stored until the Federal Criminal Court’s Appeals Chamber rules on the search’s legality. Also, parties may object to a review to protect legally privileged documents. Such objections must be made by the end of the search, either specifically (for individual documents) or generally (for all documents in a seized file).

Individuals who destroy, delete or remove evidence of a violation of the Cartel Act may be subject to criminal liability under Article 286 of the Swiss Criminal Code and penalised by a substantial fine. This criminal offence requires intent – ie, individuals may become criminally liable only if they accept that the destruction, deletion or removal of documents or data may eliminate such evidence and obstruct a dawn raid. In addition, ComCo may take such conduct into account as an aggravating circumstance when imposing sanctions on the company.

Individuals have a right to counsel and are given the opportunity to retain counsel before an interview. Counsel may attend the interview but cannot answer any questions on behalf of the interviewee. Counsel may advise but not interfere with questioning.

Company counsel may attend interviews of officers or employees. Company counsel typically focuses on document preservation, privilege protection and strategy at early stage, including a potential marker for a leniency application.

The time the leniency marker is filed determines the company’s ranking in the leniency process. Counsel typically informs the client about the leniency process at the beginning of the dawn raid, allowing the client to take an informed decision about whether it will file a leniency marker.

Evidence is gathered through formal and informal information requests to parties and third parties, witness and party interviews, and dawn raids.

Article 40 of the Swiss Cartel Act requires companies involved in anti-competitive agreements and any affected third parties to co-operate with the Swiss competition authorities during investigations. This involves the obligation to provide information and submit documents. However, companies cannot be forced to incriminate themselves, as the right to refuse certain information is protected by the Administrative Procedure Act.

The ComCo Secretariat is empowered to conduct formal interviews as part of its investigative procedures. Interviews may be held with:

• members of governing bodies (such as board members) and de facto decision-makers associated with the parties under investigation; and
• third parties, including current or former managers and employees of involved parties, representatives of competitors or customers, as well as experts who may serve as witnesses or respondents.

Parties (ie, members of governing bodies and de facto decision-makers) retain the right to remain silent, either entirely or selectively in response to particular questions, without the obligation to provide justification for their refusal. Persons interviewed as witnesses, however, have a duty to testify. A witness can only refuse to testify if testifying would risk criminal prosecution for themselves or close relatives, cause serious reputational harm or lead to direct financial damage.

Legal privilege protects communications with external lawyers admitted in Switzerland or the EU/EFTA, provided they relate to legal advice. Communications with in-house counsel are not privileged.

Under Swiss law, exchanges between a client and their external legal counsel and counsel’s work products are privileged and are therefore shielded from being reviewed by the competition authorities, provided certain conditions are met.

• First, the lawyer must be duly admitted to the Bar and entitled to act for clients before Swiss courts.
• Second, the communication must relate to counsel’s core professional activities, in particular the provision of legal advice or legal representation. By contrast, tasks that go beyond counsel’s traditional role, such as asset management, serving on boards of directors, or performing administrative functions for associations, are not covered by privilege.
• Third, legal privilege does not apply where counsel itself is implicated or under investigation in connection with the same matter.

The scope of the legal privilege extends, among other things, to written and electronic correspondence, internal legal notes, minutes of meetings, strategic analyses, legal opinions and memoranda, as well as draft agreements and settlement proposals. Conversely, documents and information that pre-date the legal mandate – such as business records or purely factual materials not prepared for the purpose of seeking legal advice – remain unprotected, even if they are subsequently shared with counsel.

In Switzerland, legal professional privilege is limited to communications with (i) attorneys entered in a Swiss cantonal register of attorneys and (ii) lawyers qualified and authorised to practise in an EU or EFTA member state. It does not apply to lawyers from third countries outside the EU/EFTA, nor does it extend to in-house counsel, even where such counsel are formally admitted to the Bar.

While challenges to informal information requests (ie, information requests that are not subject to sanctions) occur, outright non-cooperation with formal requests for information is uncommon due to the risk of fines. Pursuant to Article 40 of the Swiss Cartel Act, both parties and third parties are required to co-operate with the Swiss competition authorities. This duty of co-operation includes an obligation to answer requests for information and to produce relevant documents. At the same time, this obligation is limited by the principle that parties must not be compelled to self-incriminate.

Non-compliance with these co-operation duties may cause ComCo to impose sanctions. Companies risk administrative fines of up to CHF100,000 if they fail to submit complete and correct information or documentation. In addition, individuals who do not comply with a formal request or order to provide information may be subject to fines of up to CHF20,000.

Companies and individuals, including third parties and witnesses, submitting information are given an opportunity to designate business secrets.

The competition authorities are bound by the rules on official secrecy and must not reveal any business secrets to other parties or third parties.

At any time throughout the investigation, the investigated party may present its views in writing or orally, submit its own requests for evidence, and, for example, request the examination of individuals or the production of documents that, in its view, could make a decisive contribution to establishing the facts of the case.

Legal and factual arguments are typically raised following the statement of objections of the ComCo Secretariat and during hearings.

Informal advocacy may also occur earlier through submissions or meetings with the ComCo Secretariat.

Switzerland operates a discretionary leniency regime under which undertakings involved in cartel conduct benefit from full immunity or a reduction of fines in return for timely and effective co-operation with the competition authorities. To qualify, applicants must voluntarily provide all relevant information and evidence, co-operate fully throughout the investigation and, if requested by the authority, terminate their participation in the infringement.

Leniency is frequently sought and regularly granted where the statutory conditions are met, and a formal marker system allows companies to secure their place in the leniency queue while preparing a complete submission.

Swiss law provides for an immunity and leniency regime.

Full immunity is available to the first undertaking that voluntarily discloses its participation in a suspected cartel, provided that the disclosure either enables the authorities to initiate a formal investigation or provides evidence sufficient to establish a breach of competition law. Full immunity is excluded where ComCo already possesses enough information or proof to open proceedings or to demonstrate the infringement.

In addition, an undertaking seeking full immunity must meet several conditions. In particular, it must not have forced other parties to take part in the infringement, nor acted as a ringleader or initiator of the unlawful conduct. The applicant is required to voluntarily submit all relevant information and evidence available to it, and to co-operate fully with the ComCo Secretariat throughout the entire procedure. Furthermore, the undertaking must terminate its involvement in the infringement either at the time of filing the leniency application or upon instruction by the ComCo Secretariat.

Full immunity is reserved exclusively for the first applicant that meets all conditions. Other leniency applicants and co-operating undertakings may benefit from a reduction of fines, typically up to 50%, or up to 80% in so‑called “leniency plus” situations where a leniency applicant not only co-operates in the pending proceedings but also voluntarily reveals its participation in an additional, previously undisclosed cartel. In a leniency plus scenario, the leniency applicant benefits from an up to 80% reduction of the fine in the pending case and from full immunity with respect to the newly disclosed infringement, provided that all conditions of full immunity are met.

Any co-operation must be active and comprehensive. Merely handing over documents is insufficient. Also, ComCo expects the applicant to unequivocally admit its participation in the cartel.

Given the relatively minor risk of follow-on claims before Swiss civil courts, companies readily make use of the Swiss leniency programme. The Swiss competition authorities have a strong track record of granting immunity, making immunity a key pillar of cartel enforcement in Switzerland.

Swiss law does not provide for a specific whistle-blower reward regime for cartel conduct, and individuals do not receive financial incentives for reporting infringements.

Nevertheless, suspected cartels may be reported to ComCo through complaints or anonymous whistle-blowing channels, and the reporting framework applies broadly across sectors rather than being limited to public procurement bid rigging. ComCo has set up a whistle-blowing website with a link to ComCo’s general contact form. Whistle-blowers can also contact ComCo by using the following dedicated whistle-blowing email address: whistleblowing@weko.admin.ch.

According to ComCo’s public guidance, if a whistle-blower contacts ComCo anonymously (eg, by using an anonymous email account), ComCo will take no steps to establish the whistle-blower’s identity. If the whistle-blower reveals its identity, ComCo will not disclose it in the case files or otherwise. If ComCo uses information provided by the whistle-blower, ComCo will discuss with the whistle-blower how this information should be presented so that no conclusions can be drawn as to the whistle-blower’s identity (eg, anonymisation of documents, paraphrasing of circumstances).

While ComCo encourages compliance and reporting, Swiss counsel generally do not advertise or look to be retained by potential whistle-blowers.

The Swiss competition authorities may seek information and testimony directly from company employees, including former employees, through a formal summons issued in the course of an investigation.

In its practice, ComCo draws a distinction between, on the one hand, persons exercising governing functions – such as members of boards of directors or other governing bodies – and individuals who, without holding such positions, act as de facto decision‑makers for the undertakings under investigation. Such individuals are interviewed as representatives of the investigated undertaking (ie, as a party) and have the right to remain silent. On the other hand, third parties, including former or current directors, managers and employees of the undertakings under investigation, as well as representatives of competitors or customers and external experts, may be heard as witnesses with an obligation to testify.

Interviews follow structured procedures and are documented in written minutes. While parties may refuse to answer questions that could lead to self-incrimination, witnesses are generally subject to a duty to testify.

Companies and individuals must comply with information requests, and unjustified refusals or incomplete responses may result in administrative fines.

ComCo may directly compel companies to produce documents through formal information requests on pain of fines for non-compliance or by means of dawn raids, subject to privilege limitations.

Under Swiss law, the Swiss competition authorities may seek evidence relating to cartel conduct from companies and individuals located outside Switzerland where the conduct has actual or potential effects in Swiss markets. In practice, the ComCo Secretariat either sends an informal information request directly to the foreign addressee (in particular within the EU), being aware that such informal request is not enforceable, or sends an informal or formal information request to a Swiss entity within the group to which the addressee of the request belongs.

Companies established in Switzerland are required to produce documents and data within their control, even if the information is stored abroad, including on foreign servers or cloud-based systems. In practice, cloud storage does not limit investigatory powers, as authorities may access and seize any data that is technically accessible from the searched premises.

Generally, Swiss competition authorities have neither the possibility nor a legal basis to make use of international mutual assistance from foreign authorities. However, the Swiss competition authorities informally co-operate with foreign enforcement agencies in cartel investigations, particularly where conduct has cross-border effects. This informal co-operation excludes any exchange of confidential information between the authorities unless the parties have waived confidentiality.

ComCo co-operates with other Swiss authorities, including the Price Supervisor, though competition proceedings generally take precedence.

Switzerland does not provide mutual legal assistance in competition law cases. However, the Swiss competition authorities informally co-operate with foreign enforcement agencies in cartel investigations, particularly where conduct has cross-border effects. This informal co-operation excludes any exchange of confidential information between the authorities unless the parties have waived confidentiality.

A deeper co-operation has been established with the European Commission and the German Federal Cartel Office under formal bilateral co-operation agreements, allowing for co-ordination of enforcement activities and the exchange of confidential information in parallel investigations.

The Cooperation Agreement concluded between Switzerland and the European Union, which has been in force since 2014, enables ComCo and the European Commission’s Directorate‑General for Competition (DG COMP) to collaborate more closely in competition law enforcement. In particular, the two authorities may co-ordinate investigative and enforcement measures and exchange confidential information and documents, even in the absence of a confidentiality waiver by the parties concerned, where both authorities are investigating the same conduct or conduct that is closely connected.

Any information shared under this framework may only be used for the specific purpose set out in the request and for the enforcement of competition law in relation to the same or a related infringement. Broader use is permitted only if the undertaking concerned has expressly consented. In all cases, information exchanged under the agreement may not be used for the criminal prosecution of natural persons.

Under the agreement, ComCo and DG COMP are required to notify one another of enforcement steps that could affect the other authority’s interests and may align their actions, including the timing of dawn raids. However, each authority acts independently and does not carry out dawn raids on behalf of the other.

Leniency applications or settlement agreements submitted in other jurisdictions do not have effect in Switzerland. Undertakings must therefore file a separate leniency application or enter into a separate settlement with ComCo. Information provided in the context of Swiss leniency or settlement proceedings is not shared with foreign authorities unless the undertaking has given its written consent.

With effect from 1 September 2023, a bilateral co-operation agreement between Switzerland and Germany has been in place, allowing ComCo and the German Federal Cartel Office to co-ordinate investigative measures, including dawn raids, and to exchange confidential information. This exchange is subject to conditions largely comparable to those applicable under the EU co-operation framework. The agreement strengthens cross‑border enforcement and is expected to result in a greater number of parallel investigations in Switzerland and Germany.

While ComCo retains full autonomy over proceedings and decisions in Switzerland, international co-ordination often leads to synchronised investigative steps and can accelerate evidence gathering in complex international cartel cases.

Beyond bilateral agreements, ComCo is actively involved in multilateral fora such as the OECD Competition Committee and the International Competition Network (ICN). These bodies facilitate the sharing of general experience, policy approaches and best practices. Owing to the absence of a formal legal basis, however, they do not allow for the exchange of case‑specific or confidential information.

ComCo is not a member of the European Competition Network (ECN).

Swiss cartel enforcement does not involve criminal indictments against undertakings under criminal law; instead, investigations are conducted by ComCo and its Secretariat as administrative proceedings, with potential administrative sanctions (fines) in case of a breach of competition law.

ComCo decisions are subject to appeal before the Federal Administrative Court and ultimately the Federal Supreme Court.

Evidence is gathered and presented by the ComCo Secretariat during administrative proceedings, with ComCo acting as the decision-making authority, applying an administrative standard of proof and serving as the primary finder of fact. Parties have procedural rights including access to the case file once the statement of objections is issued, but Swiss law does not provide for broad discovery comparable to common law jurisdictions, and access to third-party evidence is limited.

Civil cartel claims are initiated by filing a statement of claim before the competent Swiss civil courts under ordinary civil procedure.

Parties adversely affected by anti-competitive behaviour may seek civil remedies, including:

• an order requiring the unlawful conduct to cease or be eliminated;
• compensation for damages suffered; and
• disgorgement of unlawfully obtained profits based on the rules governing agency without authority.

Evidence is presented to the civil court by the parties, with the claimant bearing the burden of proving an infringement, damage, causation and fault. No special pre-trial discovery comparable to common law jurisdictions is available.

A claimant’s access to evidence held by competition authorities or third parties is limited and subject to confidentiality rules, with courts able to order targeted production only in exceptional circumstances.

The ComCo Secretariat employs its own lawyers and economists, so usually does not rely on external experts for its investigations in cartel proceedings.

However, parties frequently retain experts to provide an expert opinion in Swiss cartel cases, particularly in complex matters involving market definition, competitive effects and the quantification of harm. Most experts are qualified economists, although accountants and industry specialists may also be retained to opine in civil damages actions or technically complex sectors. Such expert input is used by parties both in administrative proceedings before the competition authorities and in follow-on civil litigation.

Cartel investigations are typically conducted against all involved undertakings in a single multi-defendant proceeding rather than being separated by party.

If, during a procedure, some parties opt for settlement while others do not, ComCo may bring the proceedings against those parties opting for a settlement to an early close by way of a partial decision, while continuing the investigation against the remaining parties under the ordinary procedure. This practice is commonly referred to as “sequential hybrid proceedings”. In these proceedings, the settlement may negatively affect the position of those who choose not to settle. For instance, factual elements accepted by settling parties may support ComCo’s case and result in a more robust stance in the ongoing proceedings against non-settling parties.

Evidence obtained in one proceeding may, subject to confidentiality and procedural safeguards, be relied upon in other proceedings.

Parallel administrative investigations by ComCo, civil damages actions and proceedings in other jurisdictions are possible. In practice, civil proceedings are rare and are often only initiated once the administrative investigation has been completed.

ComCo has the authority to directly impose administrative sanctions (fines) on undertakings of up to 10% of the company’s Swiss turnover achieved in the preceding three financial years for the following infringements:

• participation in a horizontal or vertical hardcore restriction (eg, price fixing, market allocation, resale price maintenance, and passive sales restriction) pursuant to Article 5(3) or (4), CartA;
• abuse of a dominant market position pursuant to Article 7, CartA; or
• violation of a settlement agreement, a final decision by ComCo, or a ruling by an appellate court.

Proceedings take place before ComCo as the decision-making body, with full judicial review available before the Federal Administrative Court and ultimately with limited judicial review by the Federal Supreme Court.

ComCo has broad discretion under the principles of opportunity and proportionality. Investigations may be closed without sanctions in cases of minor infringements or where competitive harm is deemed insufficient to justify enforcement action.

Swiss competition law provides for the possibility of settlement proceedings. A settlement may be initiated either by the undertaking concerned or by the Swiss competition authorities themselves. There is, however, no right to a settlement, nor any duty on either side to pursue one. The decision on whether to engage in settlement discussions lies within the broad discretion of the ComCo Secretariat, which in practice is frequently willing to consider this option.

The purpose of a settlement is to bring an end to the identified restriction of competition by agreeing on corrective measures. In doing so, the undertaking gives a binding and voluntary undertaking to modify its future conduct through formally documented commitments.

Certain core elements of the case are expressly excluded from negotiation. In particular, the parties cannot bargain over:

• the factual findings;
• their legal qualification; or
• the level of the administrative fine.

Settlement agreements are concluded between the ComCo Secretariat and the undertaking concerned, but they only take effect once approved by ComCo in a formal decision. In that same decision, ComCo sets the exact amount of any fine, relying on a fine range proposed by its Secretariat. Prior to submitting the settlement for approval, the ComCo Secretariat informs the undertaking of this indicative fine range.

Concluding a settlement is regarded as a form of enhanced co-operation and is rewarded accordingly by a reduction of the fine. The extent of the reduction depends on how early the settlement is reached during the proceedings:

• during the initial investigative phase – reduction of up to 20%;
• while the statement of objections is being prepared – around 15%;
• at a later stage, once the statement of objections is largely finalised – around 10%; and
• after the statement of objections has been formally issued – around 5%.

Settlement discounts may be combined with reductions granted for other forms of co-operation:

• partial leniency combined with a settlement may result in reductions of up to 60% (compared to 50% for leniency alone);
• leniency plus (excluding full immunity) may result in a reduction of up to 84% in combination with a settlement (instead of 80% without it); and
• a settlement combined with co-operation outside the leniency framework can lead to reductions of up to 40%.

Where only some parties opt for settlement, ComCo may bring the proceedings against those parties to an early close by way of a partial decision, while continuing the investigation against the remaining parties under the ordinary procedure. This practice is commonly referred to as “sequential hybrid proceedings”.

The potential benefits of a settlement are as follows.

• Accelerated proceedings – a settlement may significantly shorten investigations. Extensive evidence gathering and in-depth factual analysis are often unnecessary. Settling parties may also waive their rights to access the case file, to submit comments on the case file or the draft decision, and to be heard by ComCo in an oral hearing.
• Procedural finality – as a condition for settlement, the ComCo Secretariat typically asks parties to waive their right to appeal. Although such waivers are not formally enforceable, settlements are in practice rarely challenged, which contributes to a faster overall resolution.
• More concise decisions – decisions following a settlement are generally shorter and more focused. This may be advantageous for companies, as a narrower reasoning can limit the factual and legal findings that might otherwise be relied upon in follow-on civil litigation.
• Financial mitigation – settlements commonly result in fine reductions ranging from 5% to 20%, depending on the procedural stage at which a settlement is reached.
• Reduced costs – streamlined procedures and shorter decisions typically translate into lower administrative and legal costs.

Conversely, defendants not entering into a settlement must generally expect longer and more costly proceedings, including full fact‑finding, access to file and, where applicable, oral hearings. Decisions tend to be more detailed, which may, if ComCo finds the defendant to be in violation of the Cartel Act, increase a defendant’s exposure in follow‑on civil litigation, and the absence of a settlement discount results in higher potential fines. In addition, continued proceedings typically entail greater legal and administrative costs, and prolong legal uncertainty until a final, appealable decision is issued.

Potential drawbacks of a settlement are as follows.

• No scope to negotiate the fine – the amount of the fine itself is not open to negotiation in settlement discussions. That said, the ComCo Secretariat informs the undertaking in advance of the fine range it intends to propose to ComCo, enabling an informed assessment of the settlement’s financial implications.
• Perceived acknowledgment of infringement – although a settlement does not involve an express admission of participation in an unlawful cartel, it generally includes an admission of participation in an agreement or concerted practice. It may therefore be viewed as an implicit acceptance of participation in conduct contrary to the Cartel Act.
• Loss of judicial review – by agreeing to settle, parties usually commit not to appeal against ComCo’s approval decision, as long as the final fine does not exceed the proposed range.
• Effects on remaining parties – in so-called sequential hybrid proceedings, where only some parties settle, the settlements may have adverse effects on those defendants who chose not to settle. For instance, factual elements accepted by settling parties may support ComCo’s case and result in a more robust stance in the ongoing proceedings against non-settling parties.

Establishment of participation in an unlawful cartel may have collateral effects, in particular by facilitating follow-on civil damages actions, as ComCo’s findings may, but do not have to, be relied upon as evidence in subsequent litigation.

In addition, findings of unlawful conduct may affect a defendant’s future bids in public tender proceedings, including potential exclusion from invitations to tender under public procurement rules.

While a settlement does not fully avoid these collateral consequences, it can mitigate litigation risk and reputational harm by shortening proceedings, narrowing the factual record and reducing the level of detail published in final decisions.

Swiss cartel enforcement involves no criminal sanctions against companies. Defendants are rather subject to administrative fines imposed by ComCo. Fines for companies are proposed by the ComCo Secretariat and calculated under the Sanctions Ordinance based on the seriousness and duration of the infringement, the relevant Swiss turnover, and aggravating or mitigating factors, with a statutory maximum of 10% of Swiss turnover over the preceding three years. The sanction is imposed by ComCo following an administrative procedure, subject to judicial review (see 5.1 Imposition of Sanctions/Fines).

Individuals do not face criminal sanctions for cartel conduct but may face certain criminal sanctions (fines) in limited procedural circumstances, such as failure to comply with information requests or violation of a final decision or a settlement agreement.

• Individuals, including members of senior management and directors, who intentionally fail to comply with a settlement agreement or a final decision may be subject to individual fines of up to CHF100,000.
• Individuals who do not comply with their information and disclosure obligations may be fined up to CHF20,000.

ComCo has imposed large cartel fines on companies in recent years, particularly in the banking, construction and manufacturing sectors, with individual fines reaching several hundred million Swiss francs, while average sanctions vary significantly depending on the duration and gravity of the infringement and the defendant’s Swiss turnover. Examples of large fines include:

• CHF237 million – sanctions imposed on domestic and international banks for participating in cartels relating to interest rate derivatives and foreign exchange spot trading (nine separate proceedings conducted between 2012 and 2025);
• CHF157 million – fine imposed on BMW for vertical restraints involving territorial restrictions (2012); and
• CHF80 million – sanctions against sanitary wholesalers for a cartel involving price co-ordination and quantity restrictions (investigation concluded in 2015; decision currently under appeal).

Swiss competition law does not provide for imprisonment for cartel conduct, and individuals have not served jail time for such offences, nor have Swiss nationals been extradited to be imprisoned abroad for cartel violations.

Individual liability has been very rare and limited to fines in specific procedural circumstances, such as non-compliance with information obligations or final decisions.

An effective compliance programme may be considered as a mitigating factor when setting fines, but it does not prevent the imposition of sanctions where an infringement has occurred. In practice, its relevance is limited to the sanction phase and depends on whether it reflects genuine efforts to prevent and promptly address anti-competitive conduct.

This is expressly confirmed by the revised Swiss Cartel Act, which will enter into force in 2027. The revised statute provides that measures adopted by a company to prevent violations of competition law may be taken into account as a mitigating factor, provided that such measures are appropriate in view of the company’s size and business activities, and the sector in which it operates. The Federal Council is expected to define the criteria for assessing whether preventative measures are adequate.

In practice, the assessment of “effectiveness” is carried out ex post and focuses on whether the compliance programme reflects genuine, proportionate and well‑implemented efforts to prevent infringements and to detect and remedy anti-competitive conduct at an early stage. Purely formal or paper‑based compliance policies are insufficient; rather, credible implementation and practical impact remain decisive, notwithstanding the fact that a violation has ultimately been established.

Under the current Swiss Cartel Act, sanctions imposed in cartel proceedings do not include mandatory consumer redress or restitution. ComCo is limited to imposing administrative fines and ordering remedies aimed at eliminating or preventing restrictions of competition. Damages, moral compensation or disgorgement of profits are granted exclusively by civil courts in private enforcement. Parallel private actions do not influence the scope of sanctions ordered by the competition authorities.

The revised Swiss Cartel Act, which is scheduled to enter into force in 2027, introduces an incentive mechanism involving voluntary compensation. While ComCo will still lack the power to order consumer redress or restitution directly, ComCo or an appeal court may, at the defendant’s request, reduce the administrative fine to an appropriate extent or order the reimbursement of an appropriate portion thereof if the defendant voluntarily pays compensation, restitution or the disgorgement of unlawfully obtained profits within the meaning of Article 12(c) and (d) of the Cartel Act.

As a result, consumer redress remains a matter of private enforcement, but voluntary compensation by a defendant may result in a lower fine in administrative proceedings.

ComCo decisions may be appealed to the Federal Administrative Court, which conducts a full review of both the statement of facts and the legal reasoning. A further appeal on points of law may be brought before the Federal Supreme Court.

Appeals are common in significant cartel cases. While most ComCo decisions are upheld by the appeal courts and outright annulments are rare, appeals may also lead to partial modifications of decisions, particularly in relation to legal assessment or the level of fines.

Overall, judicial review plays an important role in cartel enforcement, with courts regularly scrutinising ComCo’s reasoning and sanction calculations.

Cartel investigations in Switzerland, if not settled, are typically lengthy, often taking several years from the opening of a formal investigation, including dawn raids, until a final decision is rendered.

The investigative phase before the ComCo frequently lasts between one and five years, followed by decision making and publication, while appeals before the Federal Administrative Court and, where applicable, the Federal Supreme Court may add several further years.

Overall, if the defendants do not agree to settle, proceedings including appeals commonly extend well beyond five years and may reach up to a decade in complex cases.

The revision of the Swiss Cartel Act, scheduled to enter into force in 2027, introduces indicative (non‑binding) procedural time limits aimed at improving procedural efficiency and predictability. Under the revised framework, the following target timelines apply:

• preliminary investigation (Article 26, CartA) – 12 months from initiation to completion;
• formal investigation (Article 27, CartA) – 30 months from initiation to ComCo’s decision;
• appeal against a ComCo decision – 18 months from filing to decision by the Federal Administrative Court (reduced to four months for procedural decisions);
• appeal in merger control cases – three months from filing to decision by the Federal Administrative Court; and
• appeal against a decision of the Federal Administrative Court – 12 months from filing to decision by the Federal Supreme Court (four months for procedural decisions).

These deadlines are non-binding and do not invalidate proceedings and decisions if exceeded. However, if no decision is issued by the competent authority within the relevant time limit, the authority is required to inform the parties to the proceedings of the reasons for the failure to comply with the deadline. As a result, while they provide useful orientation and signal a legislative intent to accelerate cartel enforcement, they are not expected to fundamentally alter the overall duration of complex cartel cases.

Swiss law provides a private right of action for companies and individuals harmed by unlawful cartel conduct, which is exercised before the competent Swiss civil courts under ordinary civil procedure.

Companies adversely affected by unlawful conduct may bring an action and seek:

• an order requiring the infringement to cease or to be eliminated,;
• compensation for damages suffered; and
• disgorgement of unlawfully obtained profits in accordance with the rules governing agency without authority.

At present, standing to bring such claims is limited to undertakings. This will change under the revised Swiss Cartel Act, which is expected to enter into force in 2027. Under the new regime, end customers, including consumers and public bodies, will also be entitled to pursue damages claims before the Swiss courts

Claimants must establish an infringement, damage, causation and fault, with the burden of proof resting on the claimant and no extensive discovery mechanisms available.

Swiss law does not provide for class actions or other forms of collective redress in cartel cases, and claims must be brought individually. However, there have been cases of claimants forming an association with the aim of bundling their individual claims.

Consumer associations and public interest groups generally lack standing to bring damages actions, although this is expected to change in part under the revised Cartel Act, which will expand standing for end customers.

Swiss law recognises the “passing on” defence in cartel damages actions, meaning defendants may argue that claimants passed on any overcharge to their customers.

While indirect purchasers are not expressly excluded from bringing a claim, in practice they face significant evidentiary hurdles, as claimants must prove damage, causation and fault without access to broad discovery. Claims are resolved through ordinary civil proceedings, with courts assessing economic evidence on a case-by-case basis.

Evidence obtained in cartel investigations or proceedings conducted by the Swiss competition authorities is generally admissible in civil proceedings, subject to applicable confidentiality and privilege restrictions.

In practice, access to such evidence is limited, and courts balance evidentiary requests against the need to protect business secrets and the integrity of enforcement proceedings.

Private cartel damages claims in Switzerland only rarely proceed to full litigation, with many cases being discontinued or settled due to evidentiary hurdles and cost risks.

Swiss civil procedure does not provide for broad discovery, and parties must rely primarily on evidence they already possess, with courts ordering targeted production only in exceptional circumstances.

Where cases do proceed, the timeframe from initiation to final resolution typically spans several years, particularly if appeals are pursued.

Recoverable attorneys’ fees are limited and determined under cantonal tariffs.

While pure contingency fee arrangements, where the lawyer is paid only as a percentage of the recovery, are not allowed under Swiss law, Swiss lawyers may agree on a success fee component in addition to a base fee which is due regardless of the outcome (eg, hourly or fixed fee).

Under Swiss civil procedure, an unsuccessful claimant is generally required to bear court costs and contribute to the opposing party’s attorneys’ fees, as determined by the court according to statutory schedules.

Decisions in private cartel litigation may be appealed under ordinary Swiss civil procedure to the Federal Supreme Court. Appellate review is relatively common in complex cases and focuses on legal issues rather than a full reassessment of facts.

The Swiss competition authorities regard certain forms of information sharing as cartel conduct where the exchange reduces strategic uncertainty and restricts competition, in particular exchanges of competitively sensitive information such as prices, quantities, capacities or future commercial strategies.

Reviews of information exchange by the Swiss competition authorities have been rather common, especially in concentrated markets and in the context of broader co-ordination arrangements.

The Swiss competition authorities are paying close and increasing attention to competitive risks associated with artificial intelligence, including the use of pricing algorithms in cartel contexts. According to ComCo, AI – particularly algorithmic and AI‑driven pricing – can enhance competition by improving efficiency and enabling innovative pricing models, but it may also facilitate anti-competitive co-ordination under certain conditions.

ComCo identifies algorithmic pricing as a key risk area, especially where competitors rely on identical or similar pricing algorithms, use the same external providers, or feed algorithms with comparable data sets. In such scenarios, pricing behaviour may become harmonised, replacing independent competitive decision‑making. Particular attention is given to situations involving third‑party pricing tools and to the potential – so far mainly demonstrated in laboratory conditions – of self‑learning algorithms to develop collusive strategies autonomously. While ComCo notes that real‑world evidence of autonomous algorithmic collusion remains limited, it considers this an area requiring continued vigilance as AI capabilities rapidly evolve.

To date, ComCo has not reported cartel enforcement decisions based solely on the use of autonomous AI pricing tools. However, it has made clear that the use of algorithms does not reduce the responsibility of undertakings to comply with competition law. Companies remain fully accountable for ensuring that pricing algorithms, including third‑party tools, are deployed in a competition‑law‑compliant manner and do not facilitate co-ordination or information exchange.

On the enforcement side, ComCo increasingly relies on advanced data analysis and digital tools to detect and investigate cartels. Notably, it has developed and continuously enhanced screening tools – initially based on statistical methods and now incorporating machine‑learning and deep‑learning techniques – to identify suspicious bidding patterns in public procurement data. These tools are designed to detect anomalies and behavioural indicators suggestive of bid rigging, even in the absence of external complaints or leniency applications. The approach represents an internationally recognised example of proactive cartel detection.

While ComCo is actively exploring the use of AI to improve its internal processes and investigative capabilities, it proceeds cautiously. Given data protection requirements, confidentiality obligations and limited institutional resources, AI tools are used as analytical support rather than as decision‑making instruments. Decisions to open investigations remain human‑led and are based on a holistic assessment of all available evidence.

Overall, ComCo views AI as both an opportunity and a challenge for competition enforcement. It closely monitors technological and market developments, engages in international co-operation with other competition authorities, and has indicated that it will intervene where AI‑related practices have a sufficient nexus to the Swiss economy and pose a credible threat to effective competition.

Swiss competition law does not treat monopolisation as a cartel offence. Cartel enforcement under Article 5, CartA targets agreements or concerted practices between independent undertakings, whereas unilateral abusive conduct by a dominant company or a company with relative market power is assessed separately under Article 7, CartA. Accordingly, monopolisation concerns are analysed under a different legal standard.

Construction, pharmaceuticals, financial services, infrastructure, automotive and digital markets have seen heightened scrutiny.

The Swiss competition authorities increasingly focus on the preservation of electronic evidence, including communications exchanged via messaging applications and chat platforms, and routinely examine such data during investigations and dawn raids.

While no formal guidance specifically addressing ephemeral messaging has been issued, Article 286 of the Swiss Criminal Code provides some general guidance. Under Article 286, individuals who destroy, delete or remove evidence of a violation of the Cartel Act may be subject to criminal liability and penalised by a substantial fine. This criminal offence requires intent – ie, individuals may become criminally liable only if they accept that the destruction, deletion or removal of chats or other ephemeral communications may eliminate such evidence and obstruct public enforcement of competition law.

Also, failure to maintain or produce requested evidence to the ComCo Secretariat may constitute a breach of co-operation duties and can result in administrative fines or be treated as an aggravating factor when sanctions are assessed.

Swiss competition law treats “no poach” agreements and labour market allocation arrangements between employers as potential cartel infringements where they involve co-ordination on wages, hiring or employment conditions. Such conduct is assessed under Article 5, CartA as unlawful price fixing or market sharing, unless it falls within the narrow exemption for collective labour agreements between employees and employers.

Between 2022 and 2024, the ComCo Secretariat conducted a preliminary investigation into alleged wage‑fixing and information‑exchange practices in the Swiss labour market. Having found that these practices are widespread in the Swiss labour market, the ComCo Secretariat chose not to impose sanctions, to close the review by publishing an extensive final report and to announce its intention to issue compliance guidance for undertakings. The report makes clear that no poach arrangements, wage‑fixing practices and anti-competitive information exchanges in labour markets will be enforcement priorities going forward.

Leniency and immunity applications remain a central feature of cartel enforcement in Switzerland, although filing levels have fluctuated in recent years. Given the relatively minor risk of follow-on claims before Swiss civil courts, companies readily make use of the Swiss leniency programme. The Swiss competition authorities continue to rely heavily on leniency as a detection tool, but have also intensified market monitoring and screening activities. As a result, there has been a noticeable increase in ex officio investigations, particularly in sectors such as public procurement and labour markets.

While a majority of cartel investigations in Switzerland are domestic in nature, a large share of investigations concern rhe cross-border conduct of multinational companies. In these cases, ComCo has in the past shown itself open to co-ordinating parallel investigations, in particular with the European Commission and the German Federal Cartel Office, and is expected to continue doing so in the future if the conduct under investigation has effects on the Swiss market.

ComCo has not adopted a formal ESG or sustainability exception to the cartel prohibition under Article 5, CartA. The general framework of Swiss competition law applies fully to ESG‑related co-operation. In particular, the competition authorities review:

• whether an agreement constitutes a significant restriction of competition under Article 5(1), CartA;
• whether it qualifies as a hardcore restriction (Article 5(3) or (4), CartA); and
• if restrictive, whether it can be justified on grounds of economic efficiency (Article 5(2), CartA).

In line with established ComCo decisional practice, public interest or policy considerations alone (including environmental or social aims) are not sufficient to justify the conduct, unless they translate into demonstrable efficiency gains that benefit consumers and satisfy the statutory conditions.

However, ComCo has indicated in speeches, enforcement practice and publications that ESG arguments may, in principle, be put forward within the general efficiency defence, but this threshold is high:

• the parties must demonstrate objective efficiency gains (eg, cost savings, quality improvements, and innovation);
• such efficiencies must be passed on to consumers;
• the restriction must be indispensable to achieve the efficiencies; and
• competition must not be eliminated for a substantial part of the market.

To date, ComCo has not issued dedicated guidelines or comfort letters specifically addressing sustainability or ESG co-operation. However, the ComCo Secretariat has a ESG working group and is considering establishing specific ESG guidelines.

Inflationary pressures and supply chain disruptions are general risk factors that heighten cartel risks. In its practice, however, ComCo has not accepted such arguments as justifications for anti-competitive agreements.