{"id":140254,"date":"2026-04-21T13:38:54","date_gmt":"2026-04-21T13:38:54","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=140254"},"modified":"2026-04-29T13:07:05","modified_gmt":"2026-04-29T13:07:05","slug":"switzerland-cartels","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/switzerland-cartels\/","title":{"rendered":"Switzerland: Cartels"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-140254","comparative_guide","type-comparative_guide","status-publish","hentry","guides-cartels","jurisdictions-switzerland"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Baker Mckenzie<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/11\/Baker-Mckenzie-.jpg\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Baker Mckenzie<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2020\/11\/Baker-Mckenzie-.jpg\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Cartels laws and regulations applicable in Switzerland<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the relevant legislative framework respect of cartel agreements and\/or conduct ?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><strong>General legislative provisions on Cartels<\/strong><\/p>\n<p>In Switzerland, the legal framework governing cartels is set forth in the Federal Act on Cartels and other Restraints of Competition (Cartel Act; CartA). The key provisions addressing cartel conduct are contained in Articles 4 to 6 CartA.<\/p>\n<p>Article 5(1) CartA in connection with article 4(1) CartA prohibits horizontal and vertical agreements (including concerted practices):<\/p>\n<ul>\n<li>that significantly restrict competition in a market for specific goods or services and are not justified on grounds of economic efficiency; or<\/li>\n<li>that eliminate effective competition.<\/li>\n<\/ul>\n<p>Article 5(2) CartA provides an exemption for agreements significantly restricting competition that are justified on grounds of economic efficiency. To qualify, the agreement must:<\/p>\n<ul>\n<li>be necessary to reduce production or distribution costs, improve products or processes, promote research or dissemination of know-how, or enable more rational resource use; and<\/li>\n<li>not eliminate effective competition under any circumstances.<\/li>\n<\/ul>\n<p>Article 6 CartA allows the Swiss Federal Council and the Competition Commission (ComCo) to define specific types of agreements that may be justified on efficiency grounds through ordinances and general notices. The Federal Council and ComCo have made use of this right on several occasions and in particular issued a Vertical Notice and a Motor Vehicle Ordinance (see below), each with explanatory notes.<\/p>\n<p>In addition, Article 5(3) and 5(4) CartA defines a category of hardcore restrictions of competition. According to Article 5(3) CartA, the following horizontal agreements between actual or potential competitors qualify as hardcore restrictions:<\/p>\n<ul>\n<li>agreements to directly or indirectly fix prices;<\/li>\n<li>agreements to limit the quantities of goods or services to be produced, purchased, or supplied; and<\/li>\n<li>agreements to allocate markets geographically or by trading partners.<\/li>\n<\/ul>\n<p>According to Article 5(4) CartA, vertical agreements \u2013 i.e. agreements between undertakings at different levels of the production and distribution chain \u2013 qualify as hardcore restrictions when they involve:<\/p>\n<ul>\n<li>fixed or minimum resale prices; or<\/li>\n<li>territorial restrictions in distribution agreements that restrict or prevent sales by other distributors into allocated territories.<\/li>\n<\/ul>\n<p>According to the Gaba decision of the Swiss Federal Supreme Court (BGE 143 II 297), as a rule, hardcore restrictions pursuant to Article 5(3) and 5(4) CartA are presumed to significantly restrict competition. This implies that ComCo does not need to prove actual market impact or implementation. Even if the agreement has minimal or no actual effect, it can still be sanctioned unless justified on grounds of economic efficiency. However, the court clarified that hardcore restrictions can only be justified under very strict conditions and has expressly ruled out the application of a de minimis exception (e.g. low market shares or low impact) in the case of hardcore restrictions.<\/p>\n<p><strong>Sector-Specific Provisions: Motor Vehicle Industry<\/strong><\/p>\n<p>The Ordinance of 29 November 2023 on the Treatment of Vertical Agreements in the Motor Vehicle Sector (Motor Vehicle Ordinance; MVO) governs vertical agreements in the automotive sector. It codifies prior ComCo practice and identifies anti-competitive practices such as:<\/p>\n<ul>\n<li>territorial restrictions and warranty limitations;<\/li>\n<li>tying the sale of vehicles or spare parts to maintenance services;<\/li>\n<li>\u00a0restrictions on multi-brand sales;<\/li>\n<li>limited access to technical data and tools for modern vehicle systems.<\/li>\n<\/ul>\n<p><strong>Sector-Specific Provisions: Labour market<\/strong><\/p>\n<p>According to ComCo case law, agreements between employees as well as collective labour agreements (&#8220;Gesamtarbeitsvertr\u00e4ge&#8221;; &#8220;convention collective de travail&#8221;) are excluded from the scope of the Swiss Cartel Act. Consequently, employee unions and other worker representatives are free to negotiate wages, benefits, and working conditions with individual employers or employer associations. However, ComCo has clarified that this exemption is narrow. Outside of these specific employee-side agreements, the labour market does fall under the Swiss Cartel Act. As a result, any coordination between employers \u2013 such as agreeing or exchanging information on salary levels or benefits, or entering into no-poach arrangements \u2013 may be considered unlawful price-fixing and subject to enforcement under Swiss competition law.<\/p>\n<p><strong>Legislative provisions for investigating cartel conduct<\/strong><\/p>\n<p>The relevant provisions for investigating cartel conduct are set out in Articles 26-31 CartA, which govern the investigation of potential restraints of competition. Articles 49a-53 CartA, together with the Ordinance of 12 March 2004 on Sanctions imposed for Unlawful Restraints of Competition (Cartel Act Sanctions Ordinance, CASO), regulate the sanctions for unlawful restraints of competition.<\/p>\n<p><strong>Price Supervision Act<\/strong><\/p>\n<p>In addition to the competition authorities, there is an independent authority known as the Commissioner for Price Supervision (also referred to as the Price Supervisor). This authority is responsible for overseeing pricing. The statutory framework governing price oversight, as well as the authority vested in the Price Supervisor, is established under the Swiss Price Supervision Act.<\/p>\n<p>Unlike the Competition Commission and its Secretariat, which focus primarily on enforcing competition law, the Price Supervisor monitors prices in markets where competition is limited or absent, such as public transport, postal services, healthcare, and utilities. He ensures that prices are not abusive or unjustified. Furthermore, the Price Supervisor investigates cases in sectors such as banking, digital platforms, and pharmaceuticals, where prices may be artificially inflated due to market power. For example, in May 2025, the Price Supervisor ordered Booking.com to lower its commission rates for Swiss hotels by almost a quarter.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How is a cartel defined?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Swiss Cartel Act does not define the term &#8220;cartel&#8221;. Art. 4 (1) CartA defines agreements affecting competition as binding or non-binding agreements and concerted practices between undertakings operating at the same or at different levels of production which have a restraint of competition as their object or effect. Therefore, a cartel arises when otherwise independent firms coordinate their conduct in the marketplace with the purpose or effect of restricting or suppressing competition, irrespective of whether such coordination is formalized or undertaken through informal arrangements.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">To establish an infringement, does there need to have been an effect on the market?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Swiss competition law, three categories of anti-competitive agreements must be distinguished.<\/p>\n<p>First, hardcore restrictions within the meaning of Article 5(3) and (4) CartA (such as horizontal price fixing, bid\u2011rigging, market or customer allocation and quantity restrictions, as well as vertical territorial restrictions and resale price maintenance) are presumed to constitute a significant restriction of competition. For such agreements, the competition authority is currently not required to demonstrate actual effects on the market. In particular, market shares, implementation, or concrete economic effects need not be established.<\/p>\n<p>Second, non\u2011hardcore restrictions (including certain vertical agreements and horizontal cooperation agreements) are assessed under Article 5(1) and (2) CartA based on their effects on competition. Such agreements are prohibited only if they have a significant restrictive effect on the market. The analysis requires a comprehensive balancing of qualitative and quantitative criteria, conducted on a case\u2011by\u2011case basis. As a general rule, non\u2011hardcore restrictions are deemed justified without an individual effects analysis where neither the supplier\u2019s nor the buyer\u2019s market share exceeds 30 per cent, unless the agreements, in conjunction with other similar arrangements, give rise to cumulative effects on the market.<\/p>\n<p>Third, Swiss law recognises a separate category of non\u2011hardcore but \u201cqualitatively serious\u201d vertical restrictions. This category includes, inter alia, non\u2011compete obligations exceeding a duration of five years and restrictions on passive sales to specific customer groups. According to the Vertical Notice, such qualitatively serious restrictions may be considered significant even where their quantitative effects are limited. Moreover, these restrictions do not benefit from the general 30 per cent market share safe harbour applicable to other non\u2011hardcore restrictions.<\/p>\n<p>Under the revised Cartel Act, which is expected to enter into force in 2027, hardcore restrictions under Article 5(3) and (4) CartA (i.e. the first category described above) will no longer be presumed to significantly restrict competition. Instead, ComCo will be required to assess both the qualitative and quantitative effects of such restrictions on a case\u2011by\u2011case basis. The parliamentary deliberations indicate that the revised Act does not require ex post proof of specific harm, but rather focuses on the assessment of the future ability of an agreement to potentially give rise to significant restrictions of competition based on an analysis of, inter alia, market shares and barriers to entry.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the law apply to conduct that occurs outside the jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. According to Article 2 (2) CartA, the Swiss Cartel Act applies to any conduct that has an effect in Switzerland, even if it was caused outside of Switzerland and regardless of where an undertaking involved has its registered seat or office. According to the case law of the Swiss Federal Supreme Court, the Swiss Cartel Act applies where conduct may potentially have effects in Switzerland.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Which authorities can investigate cartels?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The competent authorities to investigate cartels are the Swiss Competition Commission (&#8220;ComCo&#8221;) and the Secretariat of the Competition Commission (&#8220;ComCo Secretariat&#8221;), which are located in Bern, Switzerland.<\/p>\n<p>The ComCo Secretariat is the investigating body that conducts proceedings under the Cartel Act. The ComCo Secretariat can conduct market observations and preliminary investigations, and &#8211; in consultation with a member of the presiding body of ComCo \u2013 it can open formal cartel investigations. The ComCo Secretariat prepares the case files and makes proposals to ComCo for decisions (statement of objections). It also serves as contact point for businesses, members of the public and other authorities for competition law questions. The ComCo Secretariat is divided into four divisions. Each of the divisions is responsible for \u00a0a business area: Products, Services, Infrastructure and Construction.<\/p>\n<p>ComCo is the decision-making body and takes its decisions based on the statement of objection of the ComCo Secretariat and the statements of the undertakings affected by the investigation. ComCo comprises between 11 and 15 members (currently 12 members) who are elected by the Federal Council on a part-time basis. It has a three-member presiding committee. The law requires that the majority of the ComCo members must be independent experts, usually professors of law or economics. The other ComCo members are designated by business associations and consumer organizations.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">How do authorities typically learn of the existence of a potential cartel and to what extent do they have discretion over the cases that they open?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The Swiss competition authorities have different ways to learn about a potential cartel, in particular:<\/p>\n<ul>\n<li>Leniency application: Any undertaking involved in a presumably unlawful horizontal or vertical agreement may offer substantive information to the ComCo Secretariat about such unlawful conduct in exchange for immunity or a reduction of fines. ComCo published a notification form for leniency applications as well as an electronic form to secure a place in the queue for immunity or reduced fines while preparing a full leniency application (e-marker).<\/li>\n<li>Complaints or reports: Potential cartel victims (such as competitors, customers, suppliers, distributors, etc), other authorities or third parties may inform the ComCo Secretariat about a potential cartel. ComCo published an electronic form and a specific whistleblowing e-mail address (<a href=\"mailto:whistleblowing@weko.admin.ch\">whistleblowing@weko.admin.ch<\/a>) to facilitate the reporting of suspected infringements of competition law.<\/li>\n<li>Market observations and ex officio investigations: The ComCo Secretariat monitors and observes various markets and may open ex officio investigations if it suspects anti-competitive conduct. The ComCo Secretariat developed a screening tool to discover potential bid-rigging based on data obtained from procurement bodies.<\/li>\n<li>Cooperation and exchange of information with other competition authorities: The agreement between the Swiss Confederation and the European Union concerning cooperation on the application of their competition law that entered into force in 2014 enables ComCo and the Directorate-General for Competition of the European Commission to coordinate enforcement activities and to exchange confidential information. A largely identical agreement between Switzerland and Germany concerning cooperation and coordination entered into force in 2023, enabling ComCo and the German Federal Cartel Office to coordinate enforcement activities and to exchange confidential information. Further, ComCo actively participates in different networks of competition authorities such as the Competition Committee of the Organisation for Economic Co-operation and Development (OECD) or the International Competition Network (ICN) but, critically, not in the European Competition Network (ECN).<\/li>\n<\/ul>\n<p>According to the opportunity principle (<em>Opportunit\u00e4tsprinzip) <\/em>and the principle of proportionality (<em>Verh\u00e4ltnism\u00e4ssigkeitsprinzip<\/em>), the ComCo Secretariat and ComCo have wide discretion regarding whether to open an investigation into a possible infringement of competition law. In particular in case of minor offenses, ComCo may decide to refrain from opening an investigation based on the opportunity principle and the principle of proportionality. The criteria may include the resources required to open or continue an investigation and the economic or socially harmful effects of the possible restriction of competition.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key steps in a cartel investigation?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The milestones of a formal cartel investigation by the Swiss competition authorities are as follows:<\/p>\n<p><strong>Investigation by the ComCo Secretariat (duration: 1-5 years)<\/strong><\/p>\n<ol>\n<li>Opening of an investigation<\/li>\n<\/ol>\n<ul>\n<li>Opening by the ComCo Secretariat with the approval of a member of the presiding committee of ComCo<\/li>\n<li>Direct opening or opening following a preceding informal review (market observation; preliminary investigation) by the ComCo Secretariat<\/li>\n<li>Based on facts disclosed by a leniency applicant, whistleblower or complainant or indications arising from an ex officio review by the ComCo Secretariat<\/li>\n<\/ul>\n<ol start=\"2\">\n<li>Investigation of the facts<\/li>\n<\/ol>\n<ul>\n<li>Requests for information (questionnaires)<\/li>\n<li>Witness and party interviews<\/li>\n<li>Dawn raids and inspections<\/li>\n<li>Other means of investigation (e.g. administrative assistance by other authorities)<\/li>\n<\/ul>\n<ol start=\"3\">\n<li>Possibly, state of play meeting and amicable settlement<\/li>\n<li>Statement of objections of the ComCo Secretariat<\/li>\n<li>Statement of the parties<\/li>\n<li>Submission of the case to ComCo for decision<\/li>\n<\/ol>\n<p><strong>ComCo Decision Procedure (duration: up to 1 year)<\/strong><\/p>\n<ol>\n<li>ComCo procedural decision whether or not to hear the case<\/li>\n<li>Possibly, additional investigation requested by ComCo<\/li>\n<li>Oral hearing, including statements by the parties<\/li>\n<li>ComCo decision<\/li>\n<li>Publication of ComCo decision<\/li>\n<\/ol>\n<p><strong>Appeal Procedure with Courts (duration: 1-10 years)<\/strong><\/p>\n<ol>\n<li>Appeal with Swiss Federal Administrative Court (duration: 1-10 years)<\/li>\n<li>Appeal with Swiss Federal Supreme Court (duration: 1-4 years)<\/li>\n<\/ol>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key investigative powers that are available to the relevant authorities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The key investigative powers of the Swiss competition authorities are:<\/p>\n<ul>\n<li>formal requests for information (questionnaires) to parties, witnesses and third parties under threat of fines in case of non-compliance;<\/li>\n<li>witness and party interviews; and<\/li>\n<li>dawn raids (unannounced inspections) and seizure of evidence (e.g. data, hardcopy files, electronic devices, etc).<\/li>\n<\/ul>\n<p><u>Requests for Information<\/u><\/p>\n<p>Under Article 40 of the Swiss Cartel Act (CartA), companies involved in agreements and affected third parties are required to cooperate with the Swiss competition authorities during investigations. This includes a duty to provide information (<em>Auskunftspflicht<\/em>) and a duty to produce documents (<em>Editionspflicht<\/em>). Nevertheless, companies cannot be compelled to incriminate themselves. The right to refuse to provide information is confirmed by the Administrative Procedure Act.<\/p>\n<p>Failure to comply can lead to sanctions:<\/p>\n<ul>\n<li>Companies may be fined up to CHF 100,000 for failing to provide accurate information or documents.<\/li>\n<li>Individuals who intentionally disregard an order to provide information may face fines of up to CHF 20,000.<\/li>\n<\/ul>\n<p><u>Interviews<\/u><\/p>\n<p>The ComCo Secretariat has the authority to conduct formal interviews during investigations. The ComCo Secretariat may interview:<\/p>\n<ul>\n<li>members of governing bodies (e.g. board members) and de facto decision-makers of parties to the investigation; and<\/li>\n<li>third parties, such as current or former managers or employees of parties to the investigation, representatives of competitors or customers, or experts who may be questioned as witnesses or respondents.<\/li>\n<\/ul>\n<p>Parties have the right to remain silent, either entirely or in response to specific questions, without needing to justify their refusal.<\/p>\n<p>Witnesses, however, are subject to a duty to testify (<em>Zeugnispflicht<\/em>) and a duty to tell the truth (<em>Wahrheitspflicht<\/em>). They may refuse to answer only if doing so would:<\/p>\n<ul>\n<li>risk criminal prosecution for themselves or close relatives;<\/li>\n<li>cause serious reputational harm; or<\/li>\n<li>lead to direct financial damage.<\/li>\n<\/ul>\n<p>Party interviews are often conducted during or immediately after a dawn raid. In such cases, the summons is delivered on-site. Otherwise, it is sent by registered mail.<\/p>\n<p>Generally, interviews take place at the offices of the ComCo Secretariat. If interviews are conducted during dawn raids, the locations may vary (e.g., a nearby police station or, in consultation with the person concerned, directly at the premises of the company being searched).<\/p>\n<p>A written record (minutes) is kept for each interview. While statements are not transcribed verbatim, the minutes must accurately reflect the content of the questions, answers, and any submissions. The minutes are read aloud section by section, allowing the individual being interviewed to request corrections or clarifications, which are then recorded. Before signing, the individual is given the opportunity to review the full transcript.<\/p>\n<p><u>Dawn raids and seizure of evidence<\/u><\/p>\n<p>The ComCo Secretariat has the power to conduct unannounced inspections, commonly referred to as dawn raids, to search for and seize evidence relevant to competition law investigations.<\/p>\n<p>Dawn raids are authorized by a member of ComCo&#8217;s presiding body, based on a formal request from the ComCo Secretariat. A search warrant is required.<\/p>\n<p>Authorities may inspect:<\/p>\n<ul>\n<li>business premises and private residences;<\/li>\n<li>premises of the investigated party and third parties;<\/li>\n<li>containers (e.g. cupboards, safes, desks);<\/li>\n<li>spaces (e.g. offices, storage rooms, parking lots); and<\/li>\n<li>vehicles on-site.<\/li>\n<\/ul>\n<p>They may search and seize:<\/p>\n<ul>\n<li>paper documents;<\/li>\n<li>electronic records, including emails, chats, photos, videos, and audio files; and<\/li>\n<li>any data accessible from the premises, even if stored remotely (e.g. in the cloud or on a server abroad).<\/li>\n<\/ul>\n<p>Authorities can seize original documents and data carriers, but in practice, the ComCo Secretariat prefers to scan or copy paper documents and to create forensic images (digital duplicates) of electronic data.<\/p>\n<p>If certain areas cannot be searched immediately, they may be sealed using tamper-evident tape. Tampering with a seal is a criminal offense punishable by up to three years in prison or a fine.<\/p>\n<p>Electronic data is typically not reviewed on-site. Instead, it is secured and reviewed later at the ComCo Secretariat&#8217;s offices using forensic tools.<\/p>\n<p>Legally privileged or private documents are not separated during the dawn raid but later during the data review. The ComCo Secretariat uses two procedures:<\/p>\n<ul>\n<li>pre-search triage of clearly privileged or private files; and<\/li>\n<li>ad-hoc triage during the search.<\/li>\n<\/ul>\n<p>At this stage, relevance of documents is not discussed. Once the data review is complete, the parties are informed and may comment on the findings or submit motions regarding the relevance or irrelevance of specific documents.<\/p>\n<p>Companies or individuals subject to a dawn raid may object to the search of specific documents or data. If an objection is raised, the materials concerned are sealed and stored and the Appeals Chamber of the Federal Criminal Court decides on the legality of the search.<\/p>\n<p>Objections are particularly important to protect legally privileged documents. They must be raised by the end of the search at the latest, and can be specific (targeting individual documents) or general (covering all papers and records of a seized file).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">On what grounds can legal privilege be invoked to withhold the production of certain documents in the context of a request by the relevant authorities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In Switzerland, communications and documents exchanged between a client and a lawyer are protected by legal privilege and cannot be searched or seized during competition investigations, provided the following conditions are met:<\/p>\n<ul>\n<li>The lawyer is admitted to the bar and authorized to represent clients before Swiss courts.<\/li>\n<li>The communication falls within the scope of traditional legal activities, such as legal advice or representation. Activities outside a lawyer&#8217;s core professional functions, such as asset management, board memberships, or administrative roles in associations, are not covered by the legal privilege.<\/li>\n<li>The lawyer is not personally involved or accused in the same matter.<\/li>\n<\/ul>\n<p>Privileged materials include, inter alia, correspondence (e.g. letters or emails), legal notes, meeting minutes, strategy papers, legal opinions and memoranda, draft contracts and settlement proposals.<\/p>\n<p>Pre-existing evidence such as business records or factual documents not created for legal advice is not protected, even if later shared with a lawyer.<\/p>\n<p>Legal privilege applies only to communications with:<\/p>\n<ul>\n<li>lawyers registered in a Swiss cantonal attorney register; and<\/li>\n<li>lawyers from EU or EFTA member states authorized to practice in their home country.<\/li>\n<\/ul>\n<p>It does not extend to lawyers from non-EU\/EFTA countries and in-house counsel, even if they have been admitted to the bar.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the conditions for a granting of full immunity? What evidence does the applicant need to provide? Is a formal admission required?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Article 8 of the Cartel Act Sanctions Ordinance, the Swiss Competition Commission (ComCo) may grant full immunity from fines to the first company that voluntarily reports its own involvement in a presumably unlawful restriction of competition, provided it:<\/p>\n<ul>\n<li>submits information that enables the authorities to open a formal investigation; or<\/li>\n<li>submits evidence that allows the authorities to establish a violation of competition law.<\/li>\n<\/ul>\n<p>No full immunity is granted if the authorities have already obtained sufficient information or evidence to initiate or prove the infringement.<\/p>\n<p>To be granted full immunity, the company must also:<\/p>\n<ul>\n<li>not have coerced others into participating in the infringement;<\/li>\n<li>not have played a leading or instigating role in the infringement;<\/li>\n<li>voluntarily submit all relevant information and evidence within its control;<\/li>\n<li>cooperate fully and continuously with ComCo throughout the procedure without delay or restrictions; and<\/li>\n<li>cease its involvement in the infringement either upon submitting the immunity application or when ordered to do so by the ComCo Secretariat.<\/li>\n<\/ul>\n<p>Full immunity is only available to the first applicant meeting all conditions. Subsequent cooperating parties may receive partial reductions of fines (up to 50%, or up to 80% in &#8220;leniency plus&#8221; cases, see 3.2).<\/p>\n<p>Cooperation must be proactive and complete. Simply submitting documents is not enough. ComCo expects the applicant to admit involvement in the conduct.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What level of leniency, if any, is available to subsequent applicants and what are the eligibility conditions?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Parties that do not qualify for full immunity under Swiss competition law may still benefit from a reduction of fines (up to 50%) if they meet all of the following conditions:<\/p>\n<ul>\n<li>They voluntarily provide all relevant information and evidence within their control to the competition authority.<\/li>\n<li>They cooperate fully, continuously, and without delay throughout the entire investigation.<\/li>\n<li>They end their involvement in the presumably unlawful conduct either at the time of submitting the immunity application or upon first request by the authority.<\/li>\n<\/ul>\n<p>If a leniency applicant not only cooperates in the current investigation but also voluntarily discloses its involvement in a separate cartel, it may qualify for a greater reduction (up to 80%) in the current case. In the newly disclosed case, the company may even be eligible for full immunity, provided it meets the conditions for full immunity.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are markers available and, if so, in what circumstances?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, leniency markers are available. A marker is a formal notice from a company stating its intention to submit a leniency application. The time the marker is filed determines the company&#8217;s ranking in the leniency process, provided it later submits a complete leniency application that meets the requirements for full immunity.<\/p>\n<p>If a company does not follow up with a formal leniency application, the marker becomes invalid. The reserved ranking is then released, allowing other companies that submitted subsequent markers to move up in priority, assuming they submit a qualifying application.<\/p>\n<p>Markers can be submitted electronically via the e-marker system or by email to\u00a0 <a href=\"mailto:selbstanzeige@weko.admin.ch\">selbstanzeige@weko.admin.ch<\/a>.<\/p>\n<p>To be valid, a marker must include:<\/p>\n<ul>\n<li>company name and address, including a contact person;<\/li>\n<li>statement confirming the company&#8217;s involvement in a horizontal or vertical agreement or concerted practice between companies that have as their object or effect the restriction of competition;<\/li>\n<li>declaration of intent to submit a formal leniency application;<\/li>\n<li>key points of the presumably unlawful conduct, as far as can be reasonably determined at the time, including type and duration of the conduct, the companies involved, and the affected markets; and<\/li>\n<li>date and signature.<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is required of immunity\/leniency applicants in terms of ongoing cooperation with the relevant authorities?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Once a company has filed a leniency marker, it is required to cooperate with the Swiss competition authorities throughout the investigation. This cooperation is essential to qualify for full immunity or a reduction of fines.<\/p>\n<p>The leniency applicant and its representatives must:<\/p>\n<ul>\n<li>voluntarily submit all relevant information and evidence within their control related to the presumably unlawful conduct;<\/li>\n<li>cooperate fully and without delay throughout the entire procedure;<\/li>\n<li>respond to requests for information, assist with document redactions, and participate in hearings; and<\/li>\n<li>support the authorities during dawn raids, including helping to locate and preserve evidence.<\/li>\n<\/ul>\n<p>Although the Cartel Act does not explicitly impose a confidentiality obligation, in practice, confidentiality is critical. Full immunity is only granted if the leniency application enables ComCo either to open a formal investigation or establish a competition law infringement. To achieve this, the leniency application must remain confidential. Disclosing the application without prior approval from ComCo may be considered a breach of the cooperation obligation, potentially jeopardizing the applicant&#8217;s eligibility for immunity or fine reduction.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the grant of immunity\/leniency extend to immunity from criminal prosecution (if any) for current\/former employees and directors?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Under Swiss competition law, private individuals (including current or former employees and board members) cannot be held criminally liable for competition law infringements. Enforcement measures, such as fines, for competition law infringements apply only to companies (undertakings), not to individuals acting on their behalf.<\/p>\n<p>However, individuals may be subject to fines if they wilfully<\/p>\n<ul>\n<li>violate an amicable settlement, a final and non-appealable ruling of the competition authorities or a decision of an appellate body;<\/li>\n<li>fail to fully comply with a ruling of the competition authorities concerning the obligation to provide information;<\/li>\n<li>implement a concentration that should have been notified without filing a notification; or<\/li>\n<li>violate rulings relating to concentrations of undertakings.<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Does the investigating authority have the ability to enter into a settlement agreement or plea bargain and, if so, what is the process for doing so?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, settlement agreements are available under Swiss competition law. Both the company under investigation and the Swiss competition authorities may initiate the settlement process. However, there is no obligation for either party to enter into a settlement agreement. The ComCo Secretariat has broad discretion in deciding whether to enter into such an agreement, though it is often open to doing so.<\/p>\n<p>The goal of a settlement is to agree on measures to eliminate the restriction of competition. In a settlement, the company voluntarily commits to adjust its conduct through formal commitments.<\/p>\n<p>Importantly, the following elements are not negotiable:<\/p>\n<ul>\n<li>the facts of the case;<\/li>\n<li>their legal assessment; and<\/li>\n<li>the amount of the sanction.<\/li>\n<\/ul>\n<p>A settlement agreement is concluded between the ComCo Secretariat and the company, and must be approved by ComCo through a formal ruling. In the same ruling, ComCo determines the specific amount of fines, if any, based on its Secretariat&#8217;s proposed range of fines. Before submitting the settlement to ComCo for approval, the ComCo Secretariat informs the company of the proposed range of fines.<\/p>\n<p>Entering into a settlement is considered good cooperation and is rewarded with a reduction in the fine. The earlier the settlement is reached, the greater the potential reduction:<\/p>\n<ul>\n<li>early stage (fact-finding phase): up to 20% reduction;<\/li>\n<li>mid-stage (during drafting of statement of objections): approx. 15% reduction;<\/li>\n<li>late stage (statement of objections largely completed): approx. 10% reduction; and<\/li>\n<li>after delivery of statement of objections: approx. 5% reduction.<\/li>\n<\/ul>\n<p>Settlement-related reductions can be combined with other cooperation-based reductions:<\/p>\n<ul>\n<li>leniency (other than full immunity) + settlement: up to 60% (vs. 50% for leniency alone);<\/li>\n<li>leniency Plus (other than full immunity) + settlement: up to 84% (vs. 80% for leniency plus alone); and<\/li>\n<li>settlement + good cooperation (other than leniency): up to 40%.<\/li>\n<\/ul>\n<p>If not all parties agree to settle, ComCo may issue a partial ruling for those who do, allowing the proceedings against them to conclude earlier. The investigation continues for the remaining parties under the standard procedure. This approach is known as &#8220;sequential hybrid proceedings&#8221;.<\/p>\n<h2><\/h2>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the key pros and cons for a party that is considering entering into a settlement with the relevant authority?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><u>Potential advantages<\/u><\/p>\n<ul>\n<li>Shorter proceedings: Settlements can significantly reduce the duration of investigations. Full evidence collection and detailed fact-finding are often unnecessary. Parties may also waive their right to access the case file and to submit comments on the file, and oral hearings before ComCo are typically avoided.<\/li>\n<li>No appeal process: The ComCo Secretariat typically requires parties to waive their right to appeal. Although the ComCo Secretariat has no way of enforcing this waiver, in practice settlements are final and generally not appealed against, which further shortens the overall procedure.<\/li>\n<li>Short ruling: Settlement decisions tend to be more concise, with a narrower scope of reasoning. This can be beneficial for the company, as it may weaken the basis for potential civil claims.<\/li>\n<li>Reduced fine: Settlements typically result in a reduction of 5% to 20% of the fine, depending on how early the agreement is reached (see 4.1 for details).<\/li>\n<li>Lower procedural costs: Shorter proceedings and streamlined decisions often lead to reduced administrative and legal expenses.<\/li>\n<\/ul>\n<p><u>Potential disadvantages<\/u><\/p>\n<ul>\n<li>Sanction amount is not negotiable: The fine itself cannot be negotiated as part of the settlement. However, the ComCo Secretariat discloses to the party the range of fines proposed to ComCo, which allows the party to assess the consequences of entering into a settlement agreement.<\/li>\n<li>Implied acknowledgment of wrongdoing: While a settlement does not require an explicit admission of guilt or legal liability, it may be perceived as an implicit acknowledgment of participation in unlawful conduct under the Cartel Act.<\/li>\n<li>Waiver of appeal rights: The ComCo Secretariat typically requires parties to waive their right to appeal, provided the final sanction remains within the proposed range. This means the party waives the opportunity to have its conduct reviewed by an independent court.<\/li>\n<li>Impact on non-settling parties: In sequential hybrid proceedings, where only some parties settle, the settlement may negatively affect others. For example, if settling parties acknowledge certain facts, it may strengthen ComCo&#8217;s position and lead to a more assertive approach in the remaining proceedings.<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the nature and extent of any cooperation with other investigating authorities, including from other jurisdictions?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><u>Cooperation with Swiss authorities<\/u><\/p>\n<p>Under Article 25(3) of the Cartel Act, the Swiss Competition Commission (ComCo) may share confidential information with the Swiss Price Supervisor (Commissioner for Price Supervision) to support the Price Supervisor&#8217;s duties. The Price Supervisor may also attend ComCo meetings in an advisory capacity (Art. 5(2) Price Supervision Act). Since ComCo investigations take precedence over those of the Price Supervisor, parallel procedures are typically avoided.<\/p>\n<p>Federal and cantonal governmental authorities\u00a0 are legally required to cooperate with ComCo, including providing administrative assistance and making relevant documents available.<\/p>\n<p><u>Cooperation with foreign authorities<\/u><\/p>\n<p>As a general rule, ComCo may only share information with foreign competition authorities if there is an international agreement or the the party waives confidentiality.<\/p>\n<p>Before sharing data, ComCo must notify the party and give it an opportunity to comment (Art. 42b CartA).<\/p>\n<p><u>Cooperation with the European Commission (DG COMP)<\/u><\/p>\n<p>The Cooperation Agreement between Switzerland and the European Union (in force since 2014) allows ComCo and the European Commission&#8217;s Directorate-General for Competition (DG COMP) to:<\/p>\n<ul>\n<li>coordinate enforcement activities; and<\/li>\n<li>exchange confidential information and documents, even without the party&#8217;s waiver of confidentiality, if both authorities are investigating the same or related conduct.<\/li>\n<\/ul>\n<p>Any exchanged information may only be used for the specific purpose defined in the request and for any enforcement of competition law related to the same or related conduct.<\/p>\n<p>If the party explicitly consents, the information may be used more broadly. However, no exchanged information may be used for the criminal prosecution of individuals.<\/p>\n<p>ComCo and DG COMP must inform each other of enforcement activities that may affect the other&#8217;s interests and may coordinate actions such as dawn raids. However, neither authority conducts dawn raids on behalf of the other.<\/p>\n<p>Foreign leniency applications or settlement agreements have no legal effect in Switzerland. Companies must file a separate leniency application or conclude a separate settlement agreement with ComCo. Confidential information submitted under leniency or settlement procedures is not shared unless the company expressly agrees in writing.<\/p>\n<p><u>Cooperation with the German Federal Cartel Office<\/u><\/p>\n<p>Since 1 September 2023, a bilateral agreement between Switzerland and Germany allows ComCo and the German Federal Cartel Office to:<\/p>\n<ul>\n<li>coordinate enforcement actions, including dawn raids; and<\/li>\n<li>exchange confidential information, subject to similar conditions as the EU agreement.<\/li>\n<\/ul>\n<p>This agreement enhances cross-border enforcement and is expected to lead to more parallel investigations in Switzerland and Germany.<\/p>\n<p><u>Other international cooperation<\/u><\/p>\n<p>ComCo actively participates in international networks such as the OECD Competition Committee and the International Competition Network (ICN). These platforms allow for the exchange of general experience and best practices, but do not permit sharing case-specific or confidential information due to the lack of a formal legal basis.<\/p>\n<p>ComCo does not participate in the European Competition Network (ECN).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What are the potential civil and criminal sanctions if cartel activity is established?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Swiss competition law provides for administrative and criminal sanctions as well as for civil law implications in cases of unlawful conduct by companies and individuals.<\/p>\n<p><u>Administrative sanctions for companies<\/u><\/p>\n<p>Under Article 49a of the Cartel Act, a company may be fined up to 10% of its total turnover achieved in Switzerland over the last three financial years if it:<\/p>\n<ul>\n<li>participates in a horizontal or vertical hardcore restriction (e.g. price fixing, market allocation, resale price maintenance, passive sales restriction) under Article 5(3) or (4) CartA;<\/li>\n<li>abuses a dominant market position under Article 7 CartA; or<\/li>\n<li>violates a settlement agreement, a final decision by ComCo, or a ruling by an appellate court.<\/li>\n<\/ul>\n<p>The amount of the fine depends on the duration and severity of the infringement and on the presumed profit gained from the unlawful conduct.<\/p>\n<p>For details on how fines are calculated in individual cases, see 6.2.<\/p>\n<p><u>Criminal sanctions for individuals<\/u><\/p>\n<p>While Swiss competition law does not impose criminal liability (e.g. imprisonment) for cartel conduct, it does provide for personal fines in specific cases:<\/p>\n<ul>\n<li>Individuals (including executives and directors) who wilfully violate a settlement or final decision may be fined up to CHF 100,000.<\/li>\n<li>Individuals who fail to comply with information obligations under Article 40 CartA may be fined up to CHF 20,000.<\/li>\n<\/ul>\n<p>These fines are subject to statutes of limitation (typically 4\u20137 years).<\/p>\n<p><u>Civil law implications<\/u><\/p>\n<p>From a civil law perspective:<\/p>\n<ul>\n<li>any agreement, decision, or coordinated practice that violates competition law is null and void from the beginning of the unlawful conduct (<em>ex tunc<\/em>); and<\/li>\n<li>parties harmed by unlawful conduct are entitled to request (i) the elimination of or desistance from the unlawful conduct, (ii) damages, and (iii) surrender of unlawfully earned profits in accordance with the provisions on agency without authority.<\/li>\n<\/ul>\n<p>To claim damages, the injured party must prove:<\/p>\n<ul>\n<li>unlawful conduct (including unlawful agreements and abuse of dominance);<\/li>\n<li>damage, including lost profits (<em>lucrum cessans<\/em>) and direct expenses (<em>damnum emergens<\/em>);<\/li>\n<li>causal link between the conduct and the damage; and<\/li>\n<li>fault, i.e. the claimant must show that the damage has been caused either intentionally or negligently.<\/li>\n<\/ul>\n<p>Currently, only directly affected companies can bring such claims. However, under the revised Cartel Act which is expected to enter into force in 2027, end customers, including consumers and public authorities, will have standing to bring damages claims before Swiss courts.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What factors are taken into account when the fine is set?  Does the existence of an effective corporate compliance strategy impact the determination of the fine? Please provide some examples of recent fines?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The exact amount of a fine imposed under the Swiss Cartel Act is determined on a case-by-case basis, following the guidelines set out in the Sanctions Ordinance.<\/p>\n<p>To calculate a fine, the Swiss authorities proceed as follows:<\/p>\n<ul>\n<li>Base amount (Article 3 Sanctions Ordinance): As a first step, the ComCo Secretariat determines the base amount. The base amount is calculated as a percentage of the total turnover or, in case of banks or insurances, the total gross income achieved by the company in the relevant Swiss markets over the three financial years preceding the end of the unlawful conduct. For serious infringements, the base amount typically ranges from 6% to 10%. In less severe cases, lower percentages between 1% and 5% may be applied.<\/li>\n<li>Duration of the infringement (Article 4 Sanctions Ordinance): If the infringement lasted 1 to 5 years, the base amount may be increased by up to 50%. For infringements exceeding 5 years, an additional 10% per year may be added.<\/li>\n<li>Aggravating circumstances (Article 5 Sanctions Ordinance): The fine may be increased further particularly in cases involving repeat violations, high profits from the conduct, refusal to cooperate, instigating or leading role, or retaliatory actions against other companies.<\/li>\n<li>Mitigating circumstances (Article 6 Sanctions Ordinance): The fine may be reduced in particular if the company played a passive role, did not retaliate against others, or terminated the conduct before the investigation began.<\/li>\n<\/ul>\n<p>Swiss authorities have imposed significant fines in both domestic and international cartel cases:<\/p>\n<ul>\n<li>CHF 237 million \u2013 Domestic and international banks (interest rate derivatives and foreign exchange spot trading cartels; nine investigations 2012-25);<\/li>\n<li>CHF 157 million \u2013 BMW (vertical territorial restrictions, 2012);<\/li>\n<li>CHF 80 million \u2013 Sanitary wholesalers (price and quantity cartel, investigation closed in 2015, under appeal); and<\/li>\n<li>CHF 11 million \u2013 Road construction companies (bid rigging cartel in the Canton of Graub\u00fcnden, 2019).<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are parent companies presumed to be jointly and severally liable with an infringing subsidiary?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, under Swiss competition law, a parent company is jointly and severally liable for competition law infringements committed by its subsidiary.<\/p>\n<p>Although the Cartel Act does not explicitly regulate this issue, Swiss enforcement practice has aligned with European antitrust principles, particularly the concept of a single economic entity. Under this concept, a group of companies may be considered a single economic entity if:<\/p>\n<ul>\n<li>the parent company has the ability to exercise effective control over the subsidiary; and<\/li>\n<li>it actively exercises that control, such that the subsidiary does not operate independently.<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are private actions and\/or class actions available for infringement of the cartel rules?  Are opt out class actions available?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes, private legal actions are available in Switzerland for violations of the Swiss Cartel Act. Under Article 12 of the Cartel Act, any person harmed by an unlawful restriction of competition may seek:<\/p>\n<ul>\n<li>the elimination of or desistance from the unlawful conduct, including injunctive relief;<\/li>\n<li>damages; and<\/li>\n<li>surrender of unlawfully earned profits based on the legal concept of agency without authority.<\/li>\n<\/ul>\n<p>Despite being legally available, private enforcement has played a limited role in Swiss competition law to date. Several factors have contributed to this:<\/p>\n<ul>\n<li>High evidentiary burden: Claimants must prove the infringement (which often involves an economic analysis of the markets), the harm suffered, and the causal link. This may be challenging, given that claimants have no access to the investigative tools available to authorities. Also, under Swiss competition law, the pass\u2011on defence is available to defendants in antitrust damages actions.<\/li>\n<li>No discovery or class actions: Swiss civil procedure does not allow for broad evidence-gathering or collective claims, making litigation more complex and less accessible.<\/li>\n<li>Statute of limitations: The 3-year statute of limitation starts to run on the date when the injured party acquires knowledge of the damage and the identity of the person liable. In practice, this often means that a claimant must bring a damages claim while the investigation or appeal proceedings are still pending, and therefore cannot rely on a final decision of the competition authorities or the courts. See 7.3 for details.<\/li>\n<li>Financial risk: The claimant must advance the court costs, and the losing party must cover both court costs and the opposing party&#8217;s legal fees, which can deter companies from pursuing claims.<\/li>\n<\/ul>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What type of damages can be recovered by claimants and how are they quantified?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>In Switzerland, plaintiffs can claim actual damages, including lost profits (<em>lucrum cessans<\/em>) and direct expenses (<em>damnum emergens<\/em>), resulting from a violation of competition law. However, punitive damages (which are intended to punish rather than compensate) are not available under Swiss law.<\/p>\n<p>Damages are typically assessed by comparing the plaintiff&#8217;s actual financial position during the cartel period with a hypothetical scenario in which the market operated under normal competitive conditions. This comparison helps estimate the financial harm caused by the anti-competitive conduct.<\/p>\n<p>In addition to damages, plaintiffs may also seek restitution of unlawfully earned profits from the defendant, based on the legal concept of agency without authority. This allows the injured party to recover profits that the infringing company gained through its unlawful conduct.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the limitation period for bringing a claim?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>The limitation period for civil antitrust damages claims is three years from the date on which the injured company became aware of the loss, damage or injury and of the identity of the person liable for it but in any event ten years after the date on which the harmful conduct took place or ceased.<\/p>\n<p>Under the revised Cartel Act, which is expected to enter into force in 2027, the statute of limitations for antitrust damages claims will not commence or will be suspended, if it has already commenced, from the opening of a ComCo investigation into such restrictions on competition until a final decision has been issued.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">On what grounds can a decision of the relevant authority be appealed?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Once ComCo issues its final decision, the parties have the right to appeal before the Federal Administrative Court.<\/p>\n<p>The Federal Administrative Court conducts a comprehensive review, which includes:<\/p>\n<ul>\n<li>re-examining the facts of the case;<\/li>\n<li>assessing the legal basis for the decision; and<\/li>\n<li>reviewing any measures or sanctions imposed.<\/li>\n<\/ul>\n<p>The Federal Administrative Court may also carry out its own investigative steps, although in practice this has rarely happened. Based on its findings, the court may uphold the decision, overturn it or modify it.<\/p>\n<p>The losing party may then appeal before the Federal Supreme Court, which typically limits its review to legal issues only. This means it does not re-evaluate the facts but focuses on whether the law was correctly applied.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What is the process for filing an appeal?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>An appeal against ComCo&#8217;s final decision must be filed with the Federal Administrative Court within 30 days of receiving the decision.<\/p>\n<p>The appeal must be fully reasoned, meaning it must include a clear explanation of the grounds for contesting the decision.<\/p>\n<p>Generally, the appeal has suspensive effect, meaning the enforcement of ComCo&#8217;s decision is suspended until the Federal Administrative Court rules on the appeal. On a party&#8217;s request, the court may lift the suspensive effect of the appeal.<\/p>\n<p>If a party wishes to challenge the Federal Administrative Court&#8217;s decision, it may appeal against this decision before the Federal Supreme Court, also within 30 days of receipt of the decision.<\/p>\n<p>ppeals to the Supreme Court do not automatically suspend enforcement. However, a party may submit a request for suspensive effect, which the Supreme Court will assess and may grant under certain conditions.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Practitioner points specific to the jurisdiction<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><strong><em>(i) <\/em><em>Recent notable cartel cases (limited to one or two key examples, with a very short summary of the facts, decision and sanctions\/level of fine):<\/em><\/strong><\/p>\n<p><u>Pharmaceutical Sector \u2013 Price-fixing and market-sharing cartel (2025)<\/u><\/p>\n<p>In 2025, the Swiss Competition Commission (ComCo) imposed fines on several companies in the pharmaceutical sector for coordinating pricing and supply conditions related to an active pharmaceutical ingredient used in multiple medications. The investigation revealed that between 2005 and 2019, the companies Boehringer Ingelheim, Alkaloids of Australia, Alkaloids Corporation, Alchem, C2 PHARMA, Linnea and Transo-Pharm had agreed to fix the minimum sale price of the active ingredient butylscopolamine bromide (SNBB) and to allocate quotas. The companies also exchanged commercially sensitive information, which ComCo classified as illegal price-fixing and market-sharing.<\/p>\n<p>The parties reached a settlement, and the total fines amounted to approximately CHF 600,000. One company (C2 PHARMA) received full immunity under the leniency program, while two others benefited from reduced sanctions due to their cooperation.<\/p>\n<p>ComCo coordinated certain investigative measures with the European Commission and the Australian Competition and Consumer Commission, reflecting growing international collaboration in cartel enforcement.<\/p>\n<p><u>Construction Sector \u2013 Gravel and landfill case (2024)<\/u><\/p>\n<p>In 2024, ComCo concluded an investigation into the largest gravel and landfill company in the Bern region and seven of its shareholders, issuing fines totalling CHF 5.3 million. This was the third major case in the building materials sector in recent years.<\/p>\n<p>Although the company was owned by seven shareholders, it was not jointly controlled, as shifting majorities were possible. The shareholders coordinated their activities primarily through the company&#8217;s board of directors, where each shareholder had a representative. They also agreed not to compete with one another, which ComCo found to be an unlawful restriction of competition.<\/p>\n<p>This case highlights the importance of antitrust compliance in joint ventures. If a company is held by competing shareholders but not jointly controlled, the concentration privilege does not apply. Also, the decision confirms that non-compete agreements among shareholders are prohibited.<\/p>\n<p>Several companies have appealed the decision to the Federal Administrative Court.<\/p>\n<p><em><strong>(ii) Key recent trends (e.g. in terms of fines, sectors under investigation, any novel areas of investigation, applications for leniency, approach to settlement, number of appeals, impact of hybrid working in enforcement practice \u2013 e.g. dawn raids of domestic premises, \u2018hybrid\u2019 in-person\/virtual dawn raids and interviews, access to personal devices and instant messaging apps, prevalence of private class actions etc.):<\/strong><\/em><\/p>\n<p>ComCo continues to maintain a strong enforcement stance, regularly imposing substantial fines, often in the tens of millions of Swiss francs. These fines span a wide range of sectors, including financial services, construction, automotive, pharmaceuticals, retail, and digital platforms. More recently, ComCo has expanded its focus to include for example energy, signalling a broader investigative scope.<\/p>\n<p>Leniency applications remain central to cartel enforcement. Companies that self-report and cooperate with ComCo may receive reduced fines or full immunity. ComCo also actively uses settlement procedures, offering sanction reductions for early cooperation and contributions of evidence.<\/p>\n<p>Appeals are a routine part of enforcement. ComCo decisions are frequently challenged before the Federal Administrative Court, and in some cases, escalated to the Federal Supreme Court.<\/p>\n<p>ComCo has increasingly conducted hybrid dawn raids, including inspections of private residences. Investigators routinely request access to personal devices such as smartphones and tablets, and examine communications via instant messaging apps and cloud-based platforms.<\/p>\n<p>Emerging focus areas of ComCo include:<\/p>\n<ul>\n<li>Labour market collusion: From 2022 to 2024, ComCo conducted a preliminary investigation into wage-fixing and information exchange practices. Rather than imposing fines, it opted to publish a final report and to close the case and announced plans to issue compliance guidelines for companies. The final report signals that no-poach agreements, wage-fixing, and anti-competitive information sharing in the labour market will be enforcement priorities going forward.<\/li>\n<li>Digital Economy: ComCo continues to focus on digital platforms, reflecting global enforcement trends.<\/li>\n<\/ul>\n<p>Private damages claims following ComCo decisions (follow-on claims) are still rare but slowly gain traction. While Switzerland does not have a formal class action regime, interest in private enforcement is growing. The revised Cartel Act will remove some obstacles (in particular by extending standing to customers and adjusting the statute of limitations) and future legal reforms may introduce more structured mechanisms for collective redress.<\/p>\n<p><strong>(iii)<em>Key expected developments over the next 12 months (e.g. imminent statutory changes, procedural changes, upcoming decisions, etc.).<\/em><\/strong><\/p>\n<p>The most significant development in Swiss competition law is the partial revision of the Cartel Act that was passed by the Swiss parliament on 19 December 2025. The revised Cartel Act is expected to enter into force in 2027.<\/p>\n<p>The revision aims to modernize Swiss competition law in several critical areas:<\/p>\n<ul>\n<li>Strengthening private enforcement: The reform makes it easier for parties to claim damages for anti-competitive conduct. This includes simplified procedures and clearer rules on legal standing and evidence.<\/li>\n<li>Procedural improvements: To enhance legal certainty and efficiency, ComCo must decide on the merits of a case within 30 months, while the Federal Administrative Court must rule on appeals within 18 months.<\/li>\n<li>Hardcore cartel assessment: Under the current law, following the 2016 Gaba decision of the Federal Supreme Court, horizontal and vertical hardcore restrictions of competition (Articles 5(3) and 5(4) CartA) are deemed per se to significantly restrict effective competition, regardless of their actual quantitative effects. Combined with the very narrow scope for efficiency justifications, this has resulted in a de facto presumption of illegality for hardcore restrictions. Under the revised CartA, the assessment of hardcore restrictions shifts to an effects-based approach. Pursuant to the new Article 5(1bis) CartA, ComCo will need to consider quantitative factors when determining whether such restrictions significantly restrict competition. This may include an analysis of market share, market position, and barriers to entry. This change raises the evidentiary threshold for enforcement and narrows the scope of automatic presumptions of significance.<\/li>\n<li>Merger control modernization: The reform replaces the current dominance test with the Significant Impediment to Effective Competition (SIEC) test, aligning Swiss law more closely with EU standards. This change lowers the threshold for intervention and is expected to lead to stricter merger reviews and potentially more commitments or even prohibitions.<\/li>\n<\/ul>\n<p>With regard to enforcement, ComCo is expected to maintain its robust enforcement approach, particularly against hardcore cartels. For example, in summer 2025, ComCo conducted dawn raids on steel trading companies suspected of price-fixing and tying practices. The investigation reflects ComCo&#8217;s continued focus on cartel conduct and its willingness to coordinate with international authorities.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">8838<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/140254","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=140254"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}