After The GABA-Decision: The Significance Test In Competition Law

With its decision in the GABA case, the Swiss Federal Supreme Court has given its understanding of the significance test in Article 5 SCA. In the court's view, the element functions as a "de minimis rule" which by and large is to be interpreted the same way as the respective element in Article 101 TFEU ("appreciable effect"). This means in particular that restrictive agreements which the law presumes to be unlawful are generally speaking "appreciable". In the final analysis, the court's decision has rather broad effects: It requires from the Federal Competition Commission (FCC) to completely review its approach to Article 5 SCA (comprising the de minimis-criterion, the efficiency test and the core restrictions, i.e. presumptions). On the whole, this new approach should enhance legal certainty.