Antitrust Litigation 2024 Comparisons

Legislative Framework

The substantive legal basis of civil law is set out in the Swiss Cartel Act (CartA), while the procedural basis is governed by the Swiss Code of Civil Procedure (CPC).

Novel Cases

In its decision of 13 December 2023, the Cantonal Court of Basel-Landschaft (430 23 144) addressed a request for precautionary measures concerning the issue of relative market power (Article 7 CartA). The application was based on the following facts: The plaintiff runs a mail-order company that has been the sole distributor of the defendant’s B products in Switzerland for 27 years. In 2022, in relation to its total turnover, it purchased around 90% of its goods from the defendant. The latter distributes the B products in Germany. The co-operation between the parties had grown historically and was very close. The plaintiff not only purchases goods from the defendant, but also numerous important services. The defendant supplies the plaintiff under special purchasing conditions (so-called “partner status”). In fact, the plaintiff’s business is organised almost like that of a subsidiary of the defendant, with the difference that the plaintiff is not controlled by the defendant. After years of intact co-operation, the relationship has now broken down. The defendant intends to enter the Swiss market itself via its own online platform. The defendant has cancelled the previous special terms and conditions between the plaintiff and the defendant. The applicant did not object to the fact that its co-operation with the defendant would end one day. However, it was not in a position to reorganise itself in such a way as to ensure its entrepreneurial survival within the notice period of six months set by the defendant. The plaintiff was threatened with bankruptcy and there was a suspicion that the defendant’s actual aim was to cause existential damage to the plaintiff.

The court dismissed the request because the applicant had formulated her legal claims too vaguely. As an obiter dictum, the court formulated principles on the possible abuse of a relatively dominant market position. According to the Cantonal Court of Basel-Landschaft, a company is deemed to have relative market power within the meaning of Article 4 paragraph 2bis CartA if other companies are dependent on it for the supply or demand of a product or service in such a way that there are no sufficient and reasonable opportunities to switch to other companies. The assessment of relative market power within the meaning of Article 4 paragraph 2bis CartA must be carried out in two steps. The first step is to examine whether there is a relationship of dependence in the sense mentioned above. The question to be asked is whether there are sufficient alternatives to other companies. If sufficient alternative options are available, the question arises as to whether these existing alternative options are also reasonable for the company concerned. In a second step, if a relationship of dependency could be established, it must then be analysed whether the dependent company can effectively invoke antitrust protection because the dependency came about through no fault of its own. The existence of relative market power is legally unobjectionable on its own. Only the abusive exploitation of the market position resulting from the relationship of dependence by the company with relative market power, with the result that the dependent company is hindered or disadvantaged in competition, is unlawful (Article 7 paragraph 1 CartA). According to Article 7 paragraph 2 CartA, such behaviour includes, for example (i) the refusal to enter into business relationships (eg, the blocking of supplies or purchases); (ii). discriminating against trading partners with regard to prices or other terms and conditions; or (iii) the enforcement of unreasonable prices or other unreasonable terms and conditions.

The Cantonal Court of Basel-Landschaft denied the dependency in this case since the applicant did not succeed in substantiating the dependency credibly and therefore did not fulfil the standard of proof. Consequently, the court did not grant the request for precautionary measures.

The current revision of the Cartel Act aims to facilitate the judicial enforcement of civil antitrust claims since the current civil antitrust claims are relatively rare in practice and not easy to enforce. Currently, a plaintiff may sue for damages, satisfaction and disgorgement of profits. In addition, the legislature intends to introduce the possibility to obtain a declaratory judgment regarding the unlawfulness of an anti-competitive act.

Furthermore, the dispatch on the new Cartel Act extends the right to sue to all those affected by unlawful restrictions of competition, including consumers and the public sector (eg, public contracting authorities).

In addition, the draft legislation provides a suspension of the limitation period for civil law claims during the proceedings before COMCO (until a legally binding decision is reached) so that civil claims can be asserted for longer. Moreover, voluntary compensation payments made by an offender can be considered to reduce the sanction imposed even after a legally binding decision of COMCO, the Federal Administrative Court or the Federal Court.

Legal Basis for a Claim for Damages

Article 12 (1) litera b of the Swiss Cartel Act constitutes the legal basis for a claim for damages resulting from a breach of competition law. However, the article explicitly refers to the Swiss Code of Obligations (CO) for such claims. As a result, claimants may recover damages resulting from a breach of competition law in accordance with the ordinary principles and provisions of Swiss contract and tort law. While Articles 13 and 15 of the Swiss Cartel Act provide some specific procedural rules for civil proceedings concerning such claims, the majority of the procedural rules stem from the Swiss Code of Civil Procedure (CPC).

Follow-On and Standalone Claims

Even though there is no specific legislation for follow-on claims, both follow-on and standalone claims are available according to Swiss law. The plaintiff may take civil action based on the findings of COMCO. However, a decision of COMCO is not necessary, as civil proceedings may also be started without an open investigation by COMCO.

There are neither specialist competition courts nor specialist competition judges in civil courts in Switzerland. In fact, civil competition cases are assigned to the common civil courts or commercial courts (if any).

As every Swiss canton is competent to establish the organisation of its courts, the court is assigned by cantonal law, the only federal law requirement being that there may only be one single court in each canton that handles competition cases (Article 5 (1) litera b, CPC). In most cantons, the law assigns civil competition cases to a higher cantonal court. Some cantons (ie, Zurich and Berne) have established special courts for commercial matters, which are also the competent courts for civil competition cases in these cantons. However, even these courts do not specialise exclusively in competition law but deal with commercial matters more generally.

Decisions of the Competition Commission

Decisions of COMCO are not binding for civil courts. Such decisions will nevertheless be of great importance in civil proceedings, as, in practice, civil judges will hardly ever deviate from COMCO’s opinion. As a result, such decisions may facilitate follow-on claims.

Expert Opinion by the Competition Commission

If a civil court must assess the legality of a restraint of competition, it is obliged by law to refer the case to COMCO for an expert opinion (Article 15 (1), Cartel Act). The opinion is limited to a legal assessment based on the facts provided by the court and, as is the case for COMCO’s decisions, COMCO’s expert opinion is not binding on the civil court; rather, how the expert opinion is weighed and evaluated as evidence is a matter for the judge.

Decisions of National Competition Authorities (NCAs) of Other Countries

Decisions of foreign NCAs may be submitted by the parties as evidence during civil proceedings. However, as a consequence of the principle of unfettered assessment of evidence by the court, how much weight to give the decision of a foreign competition authority is a matter for the judge.

Burden of Proof

As a general principle of Swiss civil law, the burden of proof lies with the person who derives rights from the disputed fact in question (Article 8, Swiss Civil Code). Therefore, the burden of proof concerning claims for damages lies with the plaintiff. In particular, the plaintiff has to quantify and prove the damages. However, the court may estimate the damages according to Article 42 (2) of the CO if an exact quantification is impossible.

Legal Presumptions

The most important and far-reaching legal presumption in the Swiss Cartel Act is embedded in Article 5 (3). The provision presumes the elimination of effective competition in the case of price agreements, quantity agreements and territorial allocations. This legal presumption must be rebutted by the involved companies.

Probative Value of NCA decisions

When assessing the probative value of NCA decisions, a distinction must be made as to whether the NCA decision has become final or not. If the decision has become final, the civil court is generally bound by it and cannot deviate from it without good reason. If the decision has not yet become final, the probative value is lower. De facto, civil courts will observe the relevant decisions of the authorities and only deviate from them in justified cases. 

Standard of Proof

The parties need to provide persuasive evidence for all relevant disputed facts for which they have the burden of proof. The judge has to be fully convinced that the facts took place as the party alleges. It is to be noted that the court is free to weigh and evaluate the evidence provided by the parties. There are no specific rules on how to assess the evidence (principle of the free assessment of evidence).

Under Swiss civil antitrust law, the defendant can use the passing-on defence. The defence is that the plaintiff did not suffer permanent damage because it was able to pass on the damage to its customers by adjusting its own prices. The passing-on defence ensures that the claimant is fully compensated for the damage but is not placed in a better position than before the damaging event occurred. In accordance with the general rule mentioned in 2.4 Proof, the burden of proof in establishing a pass-on defence lies with the defendant.

Claims Based on Tort Law

For claims based on tort law, the relative limitation period is three years. The limitation period starts when the plaintiff has sufficient information about the damage and the person responsible for it. Irrespective of the claimant’s knowledge, however, damage claims based on tort law become statute-barred within ten years of the damaging conduct having come to an end. 

Contract Claims

The statute of limitation period of a claim based on contract law depends first on the existing specific provisions of the contract in question. If there is no specific provision, the limitation period is ten years.

Claims for Removal or Cessation of Unlawful Restraints

There is no specific limitation period regarding claims for removal or cessation of the unlawful restraint of competition. Such claims can be brought before the court as long as the restraint exists or is imminent.

In addition, a party may waive the assertion of the limitation period for a maximum of ten years. This waiver may be repeated several times.

An estimation of an average duration of the proceedings is difficult. On the one hand, there are not many comparable cases in Switzerland. On the other, the duration depends on several factors, such as the complexity of the case, the workload of the court and granted extensions of deadlines to the parties. Consequently, the duration varies from case to case. Civil competition actions tend to be more complex than most other civil proceedings, which is likely to contribute to the proceedings taking longer than other civil proceedings in Switzerland. The duration can therefore range from one year to several years. This is especially true if the proceedings are suspended.

Class actions are not available in Switzerland – even though the introduction of class actions was discussed during the preliminary work for the CPC, the proposal was rejected in the end.

Individual claims arising from the same factual basis may, however, be bundled by way of consolidation and joinder of parties. The joinder of parties sometimes is even mandatory (Article 70 CPC). There is also the possibility of a group action, which requires certain prerequisites. The association or other organisation which wants to raise a claim must be of national or regional importance and be authorised by their statutes of association to protect the interests of a certain group of individuals. They raise the claim in their own name for a violation of the personality of the members of their group (Article 89 CPC).

Furthermore, it is also possible to assign individual claims to one person, who may bring all claims together.

As there are no class actions, there is no opt-in or opt-out system. Nevertheless, there is the possibility of joining a group of claimants or assigning individual claims to an-other person in one of the ways described in 4.1 Statutory Basis.

Although there are no specific rules and there has been no court ruling on this matter, claims are, in principle, not limited to those purchasers directly affected by illicit behaviour. In order to have standing for a claim, it is therefore sufficient for the claimant to be affected by the restraint of competition even in an indirect way. As a result, it is neither necessary for the claimant to be a competitor nor does the restraint necessarily have to be directly aimed at them. According to the prevailing doctrine, consumers are, however, not authorised to bring claims based on the Cartel Act.

Swiss law does not permit class actions, therefore there are no class certifications.

International Cases

In international cases, jurisdiction for civil competition actions in Switzerland is assessed according to the Swiss Federal Act on International Private Law and the Lugano Convention. Jurisdiction in Switzerland is given in the following cases:

• the defendant has its seat or domicile in Switzerland;
• for lack of domicile – the defendant’s habitual residence is in Switzerland;
• the damaging event occurred in Switzerland;
• the damaging event had its effects in Switzerland; and
• the parties may also agree on a place of jurisdiction for an existing or for a future legal dispute concerning pecuniary claims (Article 5, Federal Act on Private International Law, or PILA). This also includes claims based on the Cartel Act. 

Domestic Cases

Similar rules apply in domestic cases. The court at the seat or domicile of the defendant has jurisdiction. Jurisdiction is also given at the place where the damaging event occurred or where it had its effects. Additionally, jurisdiction is given at the seat or domicile of the claimant. Finally, the parties may agree on a place of jurisdiction and/or the applicable law.

No General Duty of Disclosure or Pre-action Disclosure

Swiss law does not provide for a general duty of disclosure between the parties; in particular, pre-action disclosure is not available in Switzerland. Prior to the commencement of an action, a party can therefore only obtain information from the opposing party based on existing substantive information rights; for example, a contractual right to information or the right of a shareholder of a company. The Cartel Act does not grant to private plaintiffs any additional rights to access information.

Applications for disclosure in Swiss civil proceedings, meanwhile, are handled restrictively. Generally, disclosure will only be granted if the applying party succeeds in demonstrating that it requires a specific document in the possession of the other party.

Disclosure of COMCO’s Documents

If the plaintiff is a party to the administrative proceedings, it may obtain access to the competition authorities’ documents, except for leniency application files. The question of whether COMCO is obliged to also disclose files to a civil court has not yet been answered. The Federal Supreme Court ruled that, based on Swiss data protection legislation, COMCO may grant a canton at least partial access to the files of the proceedings if the canton wishes to bring a civil action (2C_1040/2018, 2C_1051/2018).

The public prosecutor’s office and the criminal courts can consult files from other proceedings if this is necessary to prove the facts of the case or to assess the accused (Article 194 (1), CPC). A civil plaintiff who is at the same time affected by the criminal proceedings could inspect the files of the criminal proceedings and obtain COMCO’s files this way.

Legal Professional Privilege

Practising registered lawyers are subject to a professional duty of secrecy and may refuse not only to testify as a witness in a case on which they are advising but also to produce privileged documents. This is a comprehensive privilege that applies irrespective of where the documents in question are located, and irrespective of when they were created. However, this only applies to documents drawn up by a lawyer in the exercise of their traditional activities as a lawyer. If, for example, they act as a board member and prepare documents in this capacity, they are not protected.

In-House Counsel

Under Swiss law, no similar privilege exists to protect advice provided by in-house counsel. Documents prepared by, or held in the possession of, in-house counsel may therefore be requested by opposing parties in civil proceedings.

COMCO will generally deny access to statements made, and documents submitted, by leniency applicants. These files can only be inspected by the parties involved in the proceedings and are subject to a restriction on use. COMCO shall decree under penalty of infringement that the files may only be used to protect the rights within the scope of its proceedings. They may explicitly not be used for the enforcement of civil claims.

If a case has been the subject of an EU investigation, claimants may apply for access to the files and records of the European Commission and if access is granted, use the documents concerned in the respective civil proceedings in Switzerland.

Witness testimony can be submitted as evidence under the CPC and, if necessary, the court may compel witnesses to give evidence. Witness statements are usually made orally, the witnesses being subject to cross-examination. If the court does not deem it necessary for the witness to be questioned, though, it may request a witness to give evidence in writing.

The subject matter of the testimony is the statement of facts potentially relevant to the decision on a certain matter, which the witness has directly perceived themselves. Since cartel agreements are often concluded orally and secretly, testimony can be of great practical importance. However, courts tend to rely on written documentation rather than on witnesses if written documentation is available. 

In competition law cases, judges can rely on expert witnesses. 

The court may consider expert evidence on its own or at the request of a party. If the legality of a restraint of competition is in question, the court is even obliged to submit the question to COMCO for an expert opinion (Article 15 (1), Cartel Act). Since the Cartel Act calls on COMCO to act as an expert witness for competition violations and since the judge can even estimate damages in compensation cases, expert witnesses have not historically played a central role in civil cases. This could change, however, as even the estimation of damages in competition law cases is complex for civil judges. It would be conceivable that a civil judge could call in experts to better assess damages. 

Expert opinions will always be requested in writing. The parties are free to challenge the expert opinions with their own expert reports. As a rule, a court attaches greater credibility to a court-appointed expert than to a party expert who is paid to represent a certain opinion. The court expert is not only subject to a duty to tell the truth but is also liable to prosecution for deliberately false expert opinions. Although various expert opinions are compared and assessed by the judge, there is no actual oral “hot tubbing”.

Assessment of Damages

The amount of awarded damages will mainly be determined on the basis of the incurred loss that a claimant is able to prove. However, if it is not possible to establish the exact amount of damages, the judge may assess them at their discretion (Article 42 (2), CO). Furthermore, the judge may also assess the damages at their discretion if it is not possible to prove that an effective damage even occurred.

If it is impossible or unreasonable for the claimant to quantify their claim at the outset of the proceedings, they may bring an action for an unspecified claim. However, it must state a minimum value, which shall be deemed to be the provisional amount in dispute. The claim must be quantified as soon as the claimant is in a position to do so after the conclusion of the evidential steps or after the defendant has provided information (Article 85 (1) and (2), CPC).

Exemplary/Punitive Damages

Swiss law does not provide for an award of exemplary or punitive damages. However, parties affected by competition law breaches can demand restitution of the profits realised by the defendant due to the illicit behaviour under the Cartel Act. While claims for damages purport to compensate the claimant for losses suffered due to a breach of competition law, the restitution targets the return of ill-gotten gains. As such, it may, in particular, come into play where it is not possible to establish the claimant’s losses with sufficient certainty. 

“Passing-On” Defences

There are no specific legal provisions on pass-on defences and the question of their admissibility has not yet been decided by the Swiss courts. However, since the purpose of Swiss tort law consists in compensating the victim only for the damages effectively sustained, it must be assumed that the pass-on defence is admissible. Fundamental principles of Swiss tort law – particularly the prohibition of overcompensation in favour of the victim and the principle that a victim has to deduce any advantages and savings that they are able to achieve from the suffered damages – also lead to this conclusion.

As a result, if the defendant is able to successfully invoke the pass-on defence, the claimant will only be entitled to compensation for their remaining losses. 

Interest

Interest on damages resulting from a breach of competition law is payable under the same conditions as interest for other damages based on tort or contract law. Interest includes pre-judgment interest, if applicable, as well as post-judgment interest. Interest is payable at the rate of 5% for the year, where the parties have not contractually agreed on another rate.

Joint and Several Liability

If several enterprises have contributed to a breach of competition law together (ie, participants in a cartel), the contributors are jointly and severally liable to those who have suffered damages from the breach. Thus, the claimant has the right to claim the full amount of damages from one selected contributor, who may then subrogate against the other contributors.

Liability of Immunity Applicants

There is no legal basis under Swiss law to treat immunity or leniency applicants differently from other contributors in this regard. Though leniency is offered by COMCO with regard to administrative sanctions, there is no direct link between leniency applications and civil procedures. As a result, leniency applications might fully or partly release the applicant from administrative sanctions, but not from the duty to pay damages or from the retribution of illicitly earned profits.

Therefore, liability of immunity applicants is not limited.

Except for cases of summary judgments, the defendant may bring contribution proceedings against a third party; eg, other participants of a breach of competition law (Article 81 CPC). Contribution proceedings enable the defendant to lodge their claims against third parties within the proceedings of the claim against them. This constitutes a valuable remedy for the defendant if they intend to take regressive action against other contributors when ordered by the court to pay damages.

It is possible to obtain a preliminary injunction so as to prevent one party from continuing to engage in competition law breaches. In order to do that, the applicant must provide evidence of the competition law breach and demonstrate that they are likely to suffer irreparable harm if the infringement continues. In cases of extraordinary urgency, courts may even grant preliminary injunctions without hearing the other party.

Unlike in ordinary civil proceedings, the courts are not required to obtain a prior legal opinion from COMCO (Article 15, Swiss Cartel Act) in such cases, even if the legality of the restraint of competition is in question.

Depending on the urgency of the dispute, the order can take anywhere from a few days to a few weeks or months.

The consequence of an applicant being able to obtain an injunction but failing on the trial of the substantive case is that the unsuccessful party must pay the costs of the proceedings.

As methods of alternative dispute resolution in civil competition law cases, mediation and arbitration are available in Switzerland, and international contracts often provide for arbitration in Switzerland. Civil competition law disputes may therefore be submitted to arbitration, the arbitral tribunals being obliged to apply Swiss or European competition law if these laws are relevant to the outcome of the case. 

However, in the event that European competition law is not, or not correctly, applied by an arbitral tribunal, it is extremely difficult to obtain an annulment of the result as the incorrect application of European competition law does not constitute a challenge ground in terms of a public policy ground in Switzerland.

Mediation and arbitration are not mandatory in Switzerland, but most proceedings are preceded by a conciliation procedure, which can result in a final agreement.

Besides, an out-of-court settlement is desirable, and the judge is obliged to work towards this. Switzerland therefore has a high rate of out-of-court settlements.

Attempts to settle disputes out of court, in particular through arbitration, can also be provided for by contract.

The Swiss Federal Supreme Court decided in 2004 that third-party funding is permitted in Switzerland. However, the court also pointed out that, under certain circumstances, third-party funding might affect the independence required by the law of the respective lawyer. Incidentally, there are very few organisations that offer third-party funding for civil litigation in Switzerland. The organisations that do offer litigation funding assess the case based on its chances of successful trial. The litigation funder provides the financial resources for litigation funding on an ongoing basis. In many cases, they also assume the risk that the plaintiff has to pay the costs of the other party. In return, the litigation financier receives a share of the litigation profits. The participation can be determined, for example, on a percentage basis or on the basis of the investments made by the litigation funder.

As a general rule in Swiss civil law, the losing party bears the court costs and has to pay compensation for the expenses of the prevailing party. The judge has a certain amount of discretion, though, regarding the eventual allocation of the costs. The compensation is calculated based on cantonal fee schedules and does not usually cover all incurred expenses.

The law stipulates that the plaintiff or applicant must pay an advance on legal costs. The payment of the advance on costs is a prerequisite for the court to recognise the claim or application (Article 101 (3) CPC). This already serves as a kind of security for the costs.

Furthermore, the defendant can request that the plaintiff must provide security for the party costs if the plaintiff is not domiciled in Switzerland, appears to be insolvent, owes legal costs from previous proceedings or if there are other reasons for a significant risk to the party costs (Article 99 CPC). Security cannot normally be required in simplified and summary proceedings.

The decisions of the cantonal courts may be appealed to the Swiss Federal Supreme Court. Grounds for appeal are limited to false application of the law (federal law, international public law and constitutional law) by the cantonal court and to any obvious mistakes in the determination of the relevant facts. The Swiss Federal Supreme Court is bound by the facts established by the cantonal court (unless they are obviously erroneous) and, in general, new facts and evidence may not be submitted during the appeal proceedings.

As the Swiss Cartel Act is currently being revised, some changes are expected (as described in 1.2 Recent Developments). The main objective is to increase the practical relevance of civil antitrust cases.

There is no indication that the civil antitrust litigation will focus on specific areas in the future.

There is no shift recognisable from cartel damages to dominance/monopolisation cases. However, dominance cases are currently probably equally if not more frequent in Switzerland as cartel damage cases. At present, this is primarily related to the introduction of relative market power in the law.

There is no indication of an increase of civil antitrust litigation by claimants with cross-border strategies. The Swiss economy is already very internationally orientated, which is why many cases already have an international dimension.

Public tender authorities have started to include contractual penalties in their award contracts in the event that the contract was awarded due to a cartel.