The Legal 500

SS&P Newsletter, September 2012

Author

Gasser, Christoph                 

Süess, Cyrill

Unfair Competition Law

This Homburger Bulletin gives an overview of the recent amendment of the Swiss Act against Unfair Competition addressing abusive general terms and conditions.

Distribution channel management – Swiss competition law risks

• IFPI: pending investigation regarding restriction of parallel imports of records;
• Jura: pending investigation regarding restriction of parallel imports of household and electronic devices;
• Care on Skin: pending investigation regarding restriction of parallel imports and online sales of cosmetics; and
• various preliminary investigations regarding restriction of parallel imports of balcony glass, electronic devices, electric bikes, motor bikes, etc.

Competition rules for online distribution clarified

In the last few years, the Swiss Competition Commission (COMCO) has been acting aggressively against any prevention or restriction of parallel and direct imports. 

The Revision of the Unfair Competition Act increases the requirements for general terms and conditions for contracts with consumers as of July 2012 and introduces specific disclosure obligations in e-commerce as of April 2012.

Conditions attached to online sales are often problematic in Switzerland – even when they comply with EU law.

Two individual cases as an occasion for general considerations regarding online sales The Swiss Competition Commission (ComCo) has recently published its decision of 11 July 2011 by which it had approved amicable settlements of its Secretariat with Electrolux AG and V-Zug AG.

On March 18 2011 Parliament adopted new legislation through which book prices are to be fixed.

On January 4 2011 the Competition Commission announced that it has launched a preliminary investigation into a cooperation agreement between Swisscom and the city of St Gallen to extend the city's fibre-optic network.

On November 4 2010 the Competition Commission fined four undertakings Sfr7.6 million for entering into agreements on prices with competitors in relation to the distribution of door components (eg, doorknobs, hinges and locks).

On September 15 2010 the Competition Commission opened an investigation into restrictions on online sales of household appliances. The investigation aims to establish whether the restriction of online sales constitutes a violation of competition law and is the commission's first investigation into restrictions on e-commerce.

Per 1. Juli 2010 sind das neue Bundesgesetz über die Produktesicherheit (PrSG) sowie die entsprechende Verordnung (PrSV) in Kraft getreten. Mit dem neuen Gesetz sollen einerseits die Sicherheit von Produkten gewährleistet und andererseits der grenzüberschreitende freie Warenverkehr – insbesondere mit der EU – erleichtert werden.

On October 14 2010 the Competition Commission announced that it had approved the proposed acquisition of Sunrise by CVC Capital Partners from TDC. The preliminary investigation revealed no indications that the proposed concentration could create or strengthen a dominant position in Switzerland. The concentration was cleared after a first-stage assessment, without conditions or commitments.

Approximation to the EU regime – Increased, but not complete legal certainty for undertakings.

The joint marketing by a sports association or a marketer gives rise to questions as a matter of cartel law because such marketing regularly leads to exclusive rights on the part of the umbrella association and/or of the marketer. A distortion in competition may result from this because production and price competition may be restricted. Or, to put it in the words of the EU Commission with respect to the joint marketing of the rights to the UEFA Champions League: “The sale of the entire rights on an exclusive basis and for a long period of time has the effect of reinforcing the position of the incumbent television companies as the only ones with the financial strength to win the bids. This, in turn, leads to unsatisfied demand from broadcasters and a lesser ability to make an attractive offer to customers. Sports and films are two key ingredients for television and for pay-TV channels in particular. They are also proving increasingly critical for the development of new technologies."[1].