Antitrust Litigation 2019 Comparisons

Last Updated September 18, 2019

Contributed By Eversheds Sutherland Ltd

Law and Practice

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Although there is still rather limited case law available in Switzerland, awareness of antitrust litigation is growing. Moreover, the Swiss Competition Commission (ComCo) is increasingly referring undertakings that file complaints with it to the civil courts for antitrust litigation proceedings, in particular in cases where private interests seem to be more affected than public interests with regard to an alleged infringement of Swiss competition law.

There is no general public information available in Switzerland about antitrust litigation cases currently pending. However, and based on regular publications from the ComCo, the Swiss Federal Tribunal (SFT) and other judicial authorities (the sole cantonal instance courts), it can be confirmed that there are active antitrust litigation cases in Switzerland. Based on the information available, these cases are either based on the Swiss Federal Act on Cartels and other Restraints of Competition (LCart) itself or constitute contractual and/or commercial disputes in which one party raises the argument that a certain behaviour of the other violates Swiss competition law.

With regard to antitrust litigation, Swiss courts have recently repeatedly had to assess the question of the extent to which a (potential) claimant may have access to the files of the ComCo. Such access may be crucial for a potential claimant to be able to duly substantiate his or her claims, in particular with regard to the extent of the damages claimed. Since the ComCo does not want to jeopardise the leniency programme, a potential claimant generally does not have access to documents that were filed in the course of this programme –ie, the documents an undertaking submitted together with its notification of the restraint of competition (see 5.3 Leniency Materials/Settlement Agreements).

In addition to the growing awareness of the availability of antitrust litigation as outlined above, there are currently discussions at the legislative level on simplifying antitrust litigation. On the one hand, there are various proposals to simplify civil proceedings before state courts, in particular with regard to the possibility of collective redress and the rules governing advance payments made by claimants at the request of the court. These proposals should simplify litigation proceedings in general and, therefore, also motivate potential claimants to initiate antitrust litigation. The legislative procedure is currently in progress and it is expected that the Swiss government will propose a draft of the revision of the Swiss Code of Civil Procedure (CPC) in the next few months.

On the other hand, there are also discussions on implementing rules specifically to simplify antitrust litigation. Proposals for such rules concern in particular:

  • the introduction of the so-called ex-officio investigation principle (ie, the principle where the court itself must establish the facts and take the necessary evidence),
  • rules easing a claimant’s burden of proof,
  • the introduction of additional legal presumptions that could help a claimant to substantiate his or her case,
  • expanding the investigation competencies and duties of the ComCo,
  • specific rights to information for potential claimants in antitrust litigation proceedings, and
  • a claimant’s access to the files of the ComCo in order to receive the evidence necessary to substantiate its claims in an antitrust litigation proceeding.

The LCart contains a chapter addressing civil procedures which serves as the basis for damages claims for infringements of Swiss competition law (Articles 12 et seq). These provisions apply to both standalone and follow-on actions. In addition, it is generally acknowledged by Swiss legal scholars that the more general provisions for tort law cases in Articles 41 et seq of the Swiss Code of Obligations (CO) provide a legal basis for damage claims as well.

Pursuant to Article 12 para 1 of the LCart, a person hindered by an unlawful restraint of competition from entering or competing in a market is entitled to damage compensation in accordance with the CO. That person is also entitled to request the elimination of or desistance from the hindrance, satisfaction (again in accordance with the CO) or the surrender of unlawfully earned profits in accordance with the provisions on agency without authority found in the CO.

Based on the wording of this provision, it is generally acknowledged by Swiss legal scholars that only undertakings in the sense of Article 2 para 1bis of the LCart are entitled to make the aforementioned claims, and in particular to claim compensation for damages in antitrust litigation proceedings based on Articles 12 et seq of the LCart. Claimants that do not qualify as undertakings in the sense set out in the LCart, since they do not participate as competitors in the market, such as (in particular) consumers, do not benefit from the capacity to sue based on Articles 12 et seq of the LCart and are, therefore, not entitled to base their damage claims on these provisions. It is, however, generally acknowledged by Swiss legal scholars that consumers have recourse to the more general provision of Swiss tort law found in Articles 41 et seq of the CO.

Since 1 January 2011, the CPC has provided a uniform codified procedural law for the entire territory of Switzerland. The cantons retain the authority, however, to organize their courts, in particular with regard to the rationae materiae.

There are no specialist competition courts in Switzerland. Antitrust claims are enforced like all other civil law claims in a federal structure –ie, in a cantonal court at first instance. Each canton, pursuant to Article 5 para 1 lit b of the CPC, has to designate a sole cantonal instance court that has jurisdiction over cartel law claims. Four Swiss cantons (Aargau, Berne, St. Gall and Zurich) have a commercial court and have designated this court to deal with cartel law claims. At these commercial courts, judges who specialize in competition law preside, together with other judges, on cartel law claims.

There is no general procedure for transferring cases between different courts in Switzerland. Each cantonal court has to assess on its own whether it has jurisdiction over a particular case. In particular it's important to note that there is no transfer procedure available for cases where the claimant files its cartel law claim with a court that has no jurisdiction. A sole cantonal instance court that comes to the conclusion that it has no jurisdiction over a case will reject it and issue a decision of non-admissibility. However, if the claimant, following a decision of non-admissibility, files the submission that has been withdrawn or rejected due to lack of jurisdiction with the competent court within one month of the withdrawal or the declaration of non-admissibility, the date of the first filing is deemed to be the date of pendency of the proceedings. The same applies if the claimant does not file his or her claim under the proper procedure (Article 63 paras 1 and 2 CPC).

There is no legal provision pursuant to which a civil state court is bound by a decision of the ComCo. It is uncontested that the ComCo is not bound by a decision of the civil state court, in particular since it has a duty to investigate the relevant facts of the case ex officio, while in proceedings before the civil state court the principle of production of evidence applies, pursuant to which the parties must present the court with the facts in support of their case and submit the related evidence (Article 55 para 1 CPC). Whether a decision of the ComCo has a binding effect on the civil state court in follow-on cases is an open question among legal scholars. A majority argue that civil state courts are bound by ComCo decisions in these cases. Even those scholars who argue against the binding character admit that decisions of the ComCo are still of significance in follow-on proceedings. The SFT has not yet had the opportunity to clarify this question and there is no case law from cantonal courts dealing with the issue.

The decisions of a foreign national competition authority, and notably those of the European Commission on Competition, are even more certainly not binding on Swiss courts, in particular since the foreign authority does not apply the provisions of the LCart but its own competition law. However, in applying the LCart, the ComCo, as well as the sole cantonal instance courts, regularly orientate themselves towards foreign case law and regulations, and in particular towards EU case law (especially decisions of the European Court of Justice), regarding the application of Articles 101 et seq of the Treaty on the Functioning of the European Union when assessing the provisions of the LCart and whether a behaviour violates Swiss antitrust law.

The aforementioned binding effect is limited to the issue of whether the relevant impairment of competition is illegal or not. Of the other conditions that have to be proven by the claimant, there are usually neither presumptions nor proofs that can be drawn from the decisions of the ComCo, since the commission does not investigate these facts. This is particularly true of the question of the damage suffered by the claimant and the causality between that damage and the defendant’s illicit act.

The ComCo has no authority to intervene on its own initiative in antitrust litigation proceedings. However, a state court is obliged to refer the case to the ComCO for an expert report if the legality of a restraint of competition is questioned in the course of those proceedings (Article 15 para 1, LCart).

The claimant bears the burden of proof for almost all elements of its claim –ie, that it suffered damages caused by an unlawful restraint of competition attributable to the defendant. The undertaking claiming compensation for damages must usually meet the ordinary standard for proof –ie, the full, strict proof. This threshold is met if the court is satisfied, from an objective point of view and (legal scholars have claimed) to a probability of 90%, that the claimant’s substantive claim and claimed facts are correct. Article 5 paras 3 and 4 of the LCart provide for the rebuttable presumption that certain horizontal and vertical agreements lead to the elimination of effective competition and are therefore illegal, unless the defendant proves the opposite.

In cases where the claiming undertaking is not in a position to quantify the exact quantum of the damages it has suffered, the court will (pursuant to Article 42 para 2 of the CO) estimate the value itself. In these cases, it is generally acknowledged that the standard of proof is lower. The claimant has only to demonstrate, on the balance of probabilities, that it suffered damages due to the defendant’s infringement of Swiss competition law.

With regard to claims ordering the defendant to restitute unlawfully realised profit, the claimant bears the burden of proof for the defendant’s gross profit. Since it is difficult, in some business circumstances, for the claimant to prove the amount of gross profit made by another undertaking, the aforementioned Article 42 para 2 of the CO applies in cases of restitution of unlawfully realised profits as well. The defendant must provide proof of its expenses and possible losses so that the court can calculate the net profit. The defendant itself is, however, not entitled to rely on Article 42 para 2 of the CO –ie, they bear the full burden of proof and must meet the aforementioned ordinary standard for proof –ie, the full, strict proof.

In cases where the defending undertaking intends to use the 'pass-on' defence, it is generally acknowledged that it bears the burden of proof for that defence, although it may be very difficult, in practice, to prove that the claimant was able to pass the damage claimed to other undertakings. Where the defendant succeeds in proving its pass-on defence, it is up to the claimant to substantiate and prove that the passing on was only possible due to particular, extra effort and expenditure. The ultimate burden of proof in connection with the quantification of damages remains, therefore, with the claimant.

The standard of proof – for ordering interim measures – that the applying undertaking must meet, is again lower. The applying undertaking must show that the conditions for granting such interim measures (see 9.1 Injunctions) are met.

Both direct and indirect purchasers have the capacity to sue for damages resulting from infringement of Swiss competition law.

All undertakings, in the sense of Article 2 para 1bis of the LCart, may claim compensation for damages and seek other legal remedies provided by Article 12 of the LCart. A direct competitive relationship between the claiming undertaking and the defending undertaking is not necessary, moreover, it is not necessary that the defending undertaking’s infringement of Swiss competition law directly affects the claiming undertaking. An undertaking that is affected only indirectly by the infringement and is active in a different market than the undertaking that allegedly infringed competition law, or in an upstream or downstream market, also has the capacity to sue.

As mentioned above (2.1 Legal Basis for a Claim), consumers are not entitled to the claims provided by Articles 12 et seq of the LCart, however, they may base their damages claims on Articles 41 et seq of the CO –ie, on general Swiss tort law.

Interim measures proceedings take between one and six months from the filing of the application. Ordinary antitrust litigation proceedings usually take between 12 and 30 months, depending on the complexity of the case and the workload of the court. In cases where the decision of the court is appealed to the SFT the proceedings may take up to four years in total.

There is no legal provision ordering civil state courts to stay the proceedings during a parallel investigation conducted by the ComCo. Moreover, it is not clear whether the civil state court is bound by a decision of the ComCo (see 2.3 Decisions of National Competition Authorities above). The court, therefore, has discretion over whether it is prepared to suspend the proceedings.

The court may, ex officio, or based on a party’s or both parties’ joint application, suspend the proceedings (Article 126 para 1 CPC). The only condition that the CPC provides is that the suspension must be “appropriate”, it is up to the court to determine when a suspension is appropriate. It is, however, generally acknowledged that, because of a court’s duty to prepare and conduct the proceedings efficiently (Article 124 para 1 CPC), suspensions should only be ordered in exceptional cases and where there are reasonable grounds to do so. In particular a suspension of the proceedings will be ordered if the court’s decision depends on the outcome of another proceeding or if both parties apply for a suspension while they conduct settlement negotiations outside of the court.

Swiss procedural law currently only provides for limited possibilities to collectively redress damage claims. In particular, class actions are not available in Switzerland. It is, however, possible for undertakings to assign their claims to associations, other individuals or other undertakings. Moreover, several parties may jointly raise their claims against the same defending undertaking.

As mentioned in 1.2 Other Developments, there is currently a revision of the CPC pending. In this revision, the legislator might introduce instruments to collectively redress damage claims. One of the suggested new instruments deals with actions available on an opt-in basis, another instrument with those available on an opt-out one. The legislative process has, however, only just begun. Following the usual procedure, the Swiss government published a preliminary draft of the suggested revision of the CPC. Following the comments filed by the political parties and other interested associations, it is now up to the Swiss government to propose a concrete draft for a revised CPC that will be discussed and, as the case may be, amended in the Swiss parliament. Whether and, as the case may be, which instruments to collectively redress damage claims will be introduced in the CPC is, therefore, currently uncertain.

As already mentioned in 3.1 Availability, there are currently only limited possibilities to collectively redress damage claims in Switzerland and class actions are not available. The CPC currently only provides that associations and other organisations of national or regional importance, that are authorised by their articles of association to protect the interests of a certain group of individuals, may bring an action in their own name for a violation of the rights of the members of the group (Article 89 para 1 CPC).

At this time, therefore, the only possibility to collectively redress damage claims is that individual claims are assigned to another individual or an association that then files a claim for the combined, assigned claims.

Given that there are currently no instruments that allow for effective collective actions in Switzerland the question of judicial oversight of their settlement does not arise.

Neither strikeout nor summary judgments are available in Switzerland. At this time, there is also no discernible intention on the part of the legislature to introduce the possibility of these judgments into the CPC.

In domestic antitrust litigation, jurisdiction is determined by the CPC and cantonal law. Article 36 of the CPC mandates that the claiming undertaking may choose to file its antitrust law claim with the court presiding at its or at the defending undertaking’s registered office, or with the court presiding at the place where the restraint of competition occurred or had its effect. In international antitrust litigation cases, the jurisdiction is either determined by the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Lugano Convention) or, if the Lugano Convention does not apply, by the Swiss Federal Act on Private International Law (PILA). Article 2 and Article 5 para 3 of the Lugano Convention or Article 129 of the PILA provide for the same places of jurisdiction as in domestic antitrust litigation, expect for the claimant’s registered office which is not available as place of jurisdiction in international cases. Cantonal law then designates the specific court that has jurisdiction as the sole cantonal instance court for cartel law disputes (as described in 2.2 Specialist Courts). This court also has exclusive jurisdiction to order interim measures.

Domestic antitrust litigation is governed by Swiss law. In the international context, claims based on restraint of competition are governed by the law of the country of the market where the injured party is directly affected by the restraint (Article 137 para. 1 of the PILA).

The following claims are available under LCart:

  • claims for elimination of or desistance from the hindrance,
  • damage claims and claims for reparation for moral damage,
  • restitution of unlawfully realised profit, and
  • entitlement to an action for declaratory judgment.

The relevant limitation period has to be assessed separately for each claim. The claims for elimination of or desistance from the hindrance as well as actions for declaratory judgments are not subject to limitation periods. Damage claims and claims for restitution of unlawfully realised profits become time-barred one year from the date on which the claimant, as the injured party, became aware both of the damage and of the identity of the person liable. In any event, these claims become time-barred ten years after the date on which the damage was caused.

Pursuant to Article 160 para 1 lit b of the CPC, the court may order an opposing party or third parties to produce any evidence which is necessary to decide the case at hand. A party has the general duty to cooperate in the taking of evidence and every party has to produce the physical records in its possession. The civil court is, however, not entitled to request the discovery of evidence at its own discretion but only upon request of a party. Moreover, the documents to be produced by the opposing party or third parties must be designated in sufficient detail by the requesting party.

Swiss procedural law does not provide for pre-action disclosure proceedings. Claimants are not entitled to ask the defendant to produce documents and/or other information which might be relevant for the claimant’s antitrust claim. It follows that each party must in principle rely on the evidence available in its own hands and may request during the proceedings that witnesses and parties are questioned or that a third party be ordered to produce evidence. Article 158 of the CPC, however, provides for a special procedure for the “precautionary taking of evidence”. Provided that the applicant shows credibly that evidence is at risk or that it has a legitimate interest worthy of protection, a court may order the preliminary taking of evidence.

The CPC contains several provisions that provide rights to claimants, defendants or third parties to refuse to cooperate, including the right to refuse to produce evidence.

Article 160 para 1 lit. b of the CPC expressly protects legally privileged documents. A party is not obliged to produce documents that form part of its correspondence with a lawyer who is entitled to act as a professional representative. 'Correspondence' covers all documents and objects which were prepared in the course of the typical activity of a lawyer. This legal privilege applies irrespective of the date these documents were prepared and the place they are located.

In addition, trade secrets are protected under Swiss civil procedural law, as well as in proceedings before the ComCo, parties may request the non-disclosure of documents containing such trade secrets.

Documents submitted by leniency applicants are protected from disclosure. They may not be copied or otherwise duplicated by the involved parties and the ComCo does not disclose them to the civil courts. The ComCo allows these limitations because of the importance of the leniency programme and the concern that that applicants would be more reluctant to file for leniency if it were not ensured that information, and particularly the documents submitted with a leniency application, were not disclosable and consequently might be used in civil antitrust litigation proceedings. In a case involving road construction companies, the ComCo limited access to the information and documents filed in the leniency application to consultation on the ComCo's premises without providing the undertakings accused of an infringement with the opportunity to make copies of the documents.

Witness testimony is one of the types of evidence admissible in antitrust litigation. The CPC does not provide for cross-examination as known in common-law proceedings. Article 173 of the CPC authorises the parties to request that the court ask additional questions of the witnesses. Only with the consent of the court, may the parties may themselves put such questions directly to the witness.

The CPC does not expressly provide for the possibility of giving evidence in the form of a written witness statement. Witnesses usually provide their testimony orally in the court room. A witness may also be questioned at his or her place of residence (Article 170 para 3 CPC). Written witness statements generally qualify as physical records in the sense of Articles 177 et seq of the CPC and the court forms its opinion based on its free assessment of the evidence taken and in particular of the physical records. There is, however, some Swiss case law to the contrary. In particular in summary proceedings, where there are usually no oral witness hearings (in summary proceedings, evidence must be provided in the form of physical records and other evidence is only admissible if the taking of such evidence does not substantially delay the proceedings, if they are required by the purpose of the proceedings or if the court must establish the facts ex officio (Article 254 CPC)), some courts accept written witness statements as evidence. In antitrust litigation, this case law may be of relevance with regard to applications for interim measures that are filed before the main claim, since the provisions of the CPC for summary proceedings, and therefore the limitation of the evidence available, apply to applications for interim measures.

Witnesses are obliged to give evidence, provided they cannot offer a reason that authorises them to refuse to do so. A witness refusing to give evidence without justification risks being fined up to CHF1,000 and may be ordered to give evidence under the threat of Swiss Penal Code sanctions.

Economists and other types of expert may be involved in antitrust litigation. In particular, expert witnesses are important with regard to calculating the extent, and/or proving the existence of, the damages to a claimant caused by a restraint of competition.

The court may obtain an expert witness opinion at the request of a party, which is the usual way, or ex officio. The parties have a duty to present the court with the facts that support their case and to submit the related evidence, including requests to obtain expert witnesses' opinions. This means that the courts request expert witness opinions, ex officio, only with reluctance. Pursuant to Swiss case law, private expert opinions filed by a party do not qualify as evidence in the sense of Article 168 para 1 of the CPC but as substantiated allegations that must be supported by evidence.

The court instructs the expert and submits the relevant questions to him or her, either in writing or orally at the hearing. To that end, the court will provide the expert with the necessary files and set a deadline for submitting the opinion. The parties can comment on the questions that are to be put to the expert and propose that they be modified or supplemented (Article 185 CPC).

The court may order that the expert submits his or her opinion in writing or presents it orally. It may also summon the expert to the hearing in order to explain his or her written opinion. Courts often order the expert to provide some parts of his or her opinion orally, in particular in settlement hearings, and only order the expert to provide the full expert witness statement (usually in writing) in cases where no settlement can be reached between the parties. The parties have, pursuant to Article 187 para 4 of the CPC, the opportunity to ask for explanations from, or put additional questions to, experts appointed by the court.

It is not common for courts to require experts to produce joint statements indicating the areas in which they agree or disagree in advance of a hearing. A court rather asks the expert to provide additional explanation in cases where his or her expert opinion is not conclusive. In cases where the court doubts the expert’s conclusion and remains unconvinced after receiving the additional explanations it may obtain an additional expert witness opinion following the same procedure as outlined above. In such additional opinions, the expert is usually asked to provide his or her comments on the first expert witness opinion. The first expert, however, is usually not asked to comment on the additional opinion. Alternative methods of hearing this type of evidence, for instance evidence given concurrently by experts in the same field ('hot tubbing') is not common in proceedings before Swiss civil state courts.

In Swiss law, damages are defined as the reduction of the injured party's net assets and consist, in accordance with the so-called 'difference theory' (Differenztheorie), of the difference between the injured party's current financial situation and the hypothetical financial situation that would have existed if no infringement of the LCart had been committed.

With regard to claims ordering the defendant to restitute unlawfully realised profit, the reduction of the injured party's net assets due to the restraint of competition is (unlike damages claims) not of importance. The civil court must rather assess the profits that the defendant realised due to the infringement of the LCart. These claims aim at confiscating the net profit gained by unlawfully restricting competition.

The pass-on defence is available in Switzerland. An undertaking is only entitled to claim the net damages it suffered (as mentioned above in 7.1 Assessment of Damages). To the extent it was actually able to pass damages on, an undertaking does not suffer damages in the sense of Swiss law. Regarding claims for restitution of unlawfully realised profit, however, the passing-on defence is (according to legal scholarship) not available.

Interest is payable on damages in Swiss law. Swiss tort law specifically entitles the injured party to interest and this applies to damage claims based on the LCart as well. Interest is payable from the date on which the harmful event (ie, the restraint of competition) had a financial effect (ie, caused the financial damage). It is due until the date of payment of the compensation for damages. In general, the claimant is entitled to an interest rate of 5% per annum (Article 73 para 1, CO). In cases where the parties agreed on a higher rate or the claimant is able to prove that a higher interest rate applies to their damages, the claimant may claim a higher amount.

If two or more undertakings have violated Swiss competition law and caused damages to the claimant(s), for instance in cases of horizontal cartels or abuses of collective dominance, these undertakings are jointly and severally liable.

Where two or more undertakings have together caused damage to the claimant, the claimant may at his discretion request partial compensation for the damage from each joint and several liable undertaking or else full compensation from any one of them. If one of these undertakings has compensated more than its share, it can take a recourse action against the other undertaking(s) involved in the infringement.

Immunity applicants (ie, undertakings that infringed Swiss competition law but successfully applied for leniency), benefit from a total or partial waiver of the fine that would otherwise be imposed on them, provided that they assist the ComCo in the discovery and elimination of the restraint of competition. The leniency application does not, however, have an influence with respect to their liability towards other undertakings, in particular their direct purchasers, resulting from the infringement of Swiss competition law.

An undertaking may notify a third party of the dispute in which that undertaking is involved if, in the event of being unsuccessful, it might take recourse against or be subject to recourse by that third party. The notified third party may also give notice of the dispute to another third party (Article 78 CPC). The notified third party may intervene in favour of the notifying principal party without further conditions, or proceed in place of the notifying principal party, with the consent of the latter. If the notified third party refuses to intervene or does not answer the notification, the proceedings will continue without considering the third party (Article 79 CPC). A result that is unfavourable to the principal party is also effective against the notified third party, unless the state of the proceedings at the moment of the notification of the third party (or the acts or omissions of the principal party) have prevented the notified third party from making use of offensive or defensive measures, or the principal party has failed, wilfully or through gross negligence, to make use of offensive or defensive measures of which the notified third party was unaware (Article 80 CPC applying Article 77 CPC by analogy).

In addition to the aforementioned notification of a third party, the principal party may also file a so-called third-party action. In doing so, the principal party asserts the rights that it believes it will have against the notified third party in the event that it is unsuccessful in the court that is dealing with the main action. The request for the third-party action to be admitted must be made with the answers or the reply in the main proceedings. The principal party must set out the claims to be raised against the third party, together with a brief statement of the grounds. After having given the opposing party and the third party the opportunity to respond to the third-party action filed, the court decides on its admissibility. If the third-party action is admitted, the court will determine the time and extent of the related exchange of written submissions (Articles 81 and 82 CPC). Because of the cost risk connected with an action like this it is used only very reluctantly.

Moreover, the CPC provides the possibility for a third party to intervene into proceedings on its own initiative. A third party who claims to have a better right in a dispute, to the total or partial exclusion of both parties, may bring a claim directly against both parties in the court in which the dispute is pending (Article 73 para 1 CPC). Moreover, any third party who shows a credible legal interest in having a pending dispute decided in favour of one of the parties may intervene at any time as an accessory party and for this purpose submit to the court an intervention application (Article 74 para 1 CPC). If admitted, the intervening third party may carry out any procedural acts in support of the principal party, provided they are permitted at the relevant stage of the proceedings. The intervening party may in particular make use of any offensive or defensive measures and also seek appellate remedies. However, the procedural acts of the intervening party are not taken into consideration in the proceedings if they are contradictory to those of the principal party (Article 76 CPC).

Article 261 para 1 of the CPC allows that the competent court for antitrust law claims may grant interim measures, provided the applying undertaking demonstrates credibly that a right to which it is entitled has been violated or that a violation is anticipated, and that the violation threatens to cause not easily reparable harm to it. The standard of proof with regard to requests for interim measures is lower than for the main claim. A factual allegation is credible even if the court is not fully convinced of its truth but considers it to be predominantly true (although not all doubts are eliminated).

The court may order any interim measure suitable to prevent the imminent harm, in particular an injunction, an order to remedy an unlawful situation or a performance in kind (Article 262, CPC). In cases where the applying undertaking requests the ordering of interim measure before it files its principal action, the court, with the order for interim measures, sets a deadline to the applying undertaking within which it must file its main action. In the event of default, the ordered interim measures become automatically ineffective (Article 263, CPC). In addition, the court may make the interim measure conditional on the payment of security by the applying undertaking if it is anticipated that the interim measures may cause loss or damage to the opposing undertaking(s). The applying undertaking is required to provide a cross-undertaking in damages (ie, it is liable for any loss or damage caused by unjustified interim measures). If the applying undertaking proves, however, that it applied for the measures in good faith, the court may reduce the damages or entirely release it from liability. The security must be released once it is established that no action for damages will be filed. In case of uncertainty, the court shall set a deadline for filing the action (Article 264, CPC).

Applications for interim measures are currently more common than ordinary proceedings, in particular given that the harm resulting from a behaviour violating competition law might not be fully compensated by damages or the restitution of unlawfully realised profits. The effect of decisions on interim measures as precedent is not to be underestimated. These decisions provide an indication of how the claim in the ordinary proceedings is likely to be seen, moreover, they indicate to the claimant where the court found their argument to be weak. Parties often settle their dispute once the court has ruled on the request for interim measures.

Upon the request of the applying party, the court may order interim measures immediately and without hearing the opposing undertaking(s) first and without prior notice to the other undertaking(s). The applying party must demonstrate credibly that there is a case of 'special urgency', in particular where there is a risk that the enforcement of the measure will be frustrated. As a result of this condition, only cases where it is intolerable for the applying party to wait for the opposing undertaking(s) comments since the requested interim measures would become useless are worth considering when filing such an application. Requests for interim measures without prior notice to the opposing undertaking(s) are usually filed in cases where there is a lack of time, provided that the applying undertaking did not itself create the (special) urgency, where a surprise effect is necessary (against the background of the risk of frustration), or where there is a risk that the behaviour that should be prevented will be intensified. In addition to this requirement of special urgency, the general conditions for granting interim measures as outlined above must be met.

When ordering these interim measures without prior notice, the court, by virtue of its order, summon(s) – at the same time – the opposing undertaking(s) to a hearing, which must take place immediately. Alternatively, the court must set a deadline for the opposing undertaking(s) to comment in writing on the request for ordering interim measures. After hearing the opposing undertaking(s), the court will immediately decide on the application. Moreover, the court may ex officio order the applying undertaking to provide security before ordering interim measures (Article 265 CPC).

The court issues orders for interim measures without prior notice to the opposing undertaking(s) usually within a few days due to the special urgency that must be demonstrated by the applying undertaking.

Competition law claims may be resolved by arbitration provided that the parties concluded an arbitration agreement. As a general rule, international arbitration proceedings are governed by Articles 176 et seq of the PILA while domestic arbitration proceedings are governed by Articles 353 et seq of the CPC. Other than civil state courts (see 2.3 Decisions of National Competition Authorities above), arbitral tribunals are not obliged, but have the option, to submit the matter to the ComCo for an expert report.

In addition, the civil state court may recommend mediation proceedings to the parties at any time during antitrust litigation (Article 214 para 1 CPC). Moreover, the parties may at any time make a joint request for mediation (Article 214 para 2 CPC). The court proceedings remain suspended until the request is withdrawn by one of the parties or until the court is notified of the end of the mediation (Article 214 para 3 CPC).

Last but not least, and although not a separate alternative dispute resolution mechanism, the civil state court may at any time during antitrust litigation attempt to achieve a settlement agreement between the parties (Article 124 para 3 CPC). The court has a large discretion with regard to such settlement negotiations. It can either convene the parties to a special hearing where no pleadings are scheduled, or carry out settlement negotiations during a formal hearing, or submit a written settlement proposal to the parties. It may also decide to combine settlement negotiations with the taking of evidence –ie, to first hear some (key) witnesses or expert witnesses and then conduct settlement negotiations with the parties.

Swiss law does not prohibit third parties from funding antitrust litigation. Whether third parties provide funding depends on whether or not the parties can reach an agreement on the relevant conditions.

Each canton determines on its own the litigation costs that occur when filing an action. In general, the costs depend on the amount in dispute.

In its final decision, the court decides on the merits and on the procedural costs (Article 104 para 1 CPC). The procedural costs include the court costs as well as the party costs –ie, the reimbursement of necessary outlays, the costs for professional representation by a lawyer (several cantons provide tariffs to determine these costs) or (if a party is not professionally represented and in justified cases) a reasonable compensation for personal efforts (Article 95 paras 1 and 3 CPC). As far as their own representation costs are not covered by the party costs set by the court, the respective parties need to bear them on their own.

As a general rule, the court charges the aforementioned procedural costs to the unsuccessful party. If no party succeeds entirely, the costs are usually allocated in accordance with the outcome of the case (Article 106 paras 1 and 2CPC).

The CPC also provides the possibility for the defendant to request that the claimant provide security for party costs. The CPC does not provide this possibility to the claimant. Hence, the claimant bears the full enforcement risk in the event that it is entitled to compensation. Article 99 para 1 of the CPC provides four different situations in which the civil state court, at the request of the defendant, may order the claimant to provide security for party costs, in particular if the claimant has no residence or registered office in Switzerland or if there seems to be a considerable risk that the compensation will not be paid. However, it must be noted that in international cases, there are various agreements limiting or excluding the possibility to request security for party costs for situations that rely exclusively on the absence of a residence or registered office in Switzerland.

Once ordered to provide security for party costs, the claimant may provide it either in cash or in the form of a guarantee from a bank with a branch in Switzerland or from an insurance company authorised to operate in Switzerland (Article 100 para 1 CPC). The court may subsequently order the increase, reduction or return of the security (Article 100 para 2 CPC).

Since the CPC provides that antitrust based claims must be assessed by a sole cantonal instance court, the decision of the cantonal court may only be appealed to the SFT. Since there is only one cantonal court that can handle antitrust litigation cases, no threshold applies –ie, there is no minimum amount in dispute required for an appeal to be permissible in cartel law claims.

The SFT may assess both the application of the law as well as the establishment of the facts by the sole cantonal instance court. With regard to that court’s establishment of the facts, however, the requirements to appeal that assessment are very strict. The SFT assesses the cantonal court’s establishment of the facts only if the court’s assessment is obviously inaccurate (ie, arbitrary), or if the assessment is based on a violation of law, typically on a violation of procedural rules for the establishment of the facts of a case.

Eversheds Sutherland

Eversheds Sutherland Ltd,
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8001 Zurich,
Switzerland

+41 44 204 90 90

+41 44 204 90 91

martin.rauber@eversheds-sutherland.ch www.eversheds-sutherland.ch
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Law and Practice in Switzerland

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