SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
Wenger Plattner Rechtsanwälte Steuerberater Notare Seestrasse 39 | Postfach 602 CH-8700 Küsnacht-Zürich Switzerland Tel: +41 43 222 38 00 Email: zuerich@wenger-plattner.ch Web: wenger-plattner.ch
1. Introduction 1.1 Current Framework for Private Antitrust Litigation The substantive Swiss antitrust rules are set out in the Swiss Cartel Act (CartA; SR 251). They apply to both public and civil enforcement procedures. Specific civil procedure rules are set out in the Swiss Code of Civil Procedure (CPC; SR 272). The CartA provides certain specifications on private enforcement of antitrust law (Articles 12, 13 and 15 CartA, in particular). Cases on private enforcement of Swiss antitrust law are still scarce. The last noteworthy civil antitrust proceeding deals with relative market power (Arti - cle 4 para. 2bis CartA) before the Cantonal Court of Basel-Landschaft (BL), dating from 2023, decided in a proceeding requesting interim measures. A distribu - tor, running a mail-ordering business, had been inte - grated into the distribution system of the defendant for almost 30 years. He heavily depended on turnover generated with the sale of the defendant’s products. The collaboration had been very close. Then, the defendant decided to enter the Swiss market himself, and he terminated the collaboration – ie, he cancelled the special “partner status” of the plaintiff. The court dismissed the plaintiff’s arguments as they were not persuasive on the issue of relative market power and its abuse. The court emphasised that while the abuse of relative market power is unlawful, the mere exist - ence of such a position is not. Further, the plaintiff did not take the requisite steps for preventing a state of dependence from the defendant. The case as such is complex. The main takeaway, however, is that a civil procedure requesting interim measures under
the CartA may be more efficient and faster than an administrative proceeding before the Swiss Competi - tion Commission (ComCo). However, plaintiffs must take early and decisive steps to avoid dependence on a business partner (eg, by negotiating sound cancel - lation terms), and they must document such steps. Otherwise, they are unlikely to fulfil the standard of proof on the alleged facts. Swiss civil courts are still reluctant to take bold action in civil antitrust cases, and they apply common civil law principles, such as the standard and burden of proof. Another civil law case from August 2024 (Supreme Court of the Canton of Zug) concerns the termina - tion of a “service partner” contract of a car distribu - tor in a selective distribution system implemented by the car importer. The distributor requested, inter alia, that these contracts be continued, that it be granted access to certain relevant information, and to the importer’s IT system, and that it still be listed and named as an authorised distributor vis-à-vis custom - ers. The distributor had been involved in the importer’s distribution system for almost 40 years. The facts of the case are complex. The case has been decided as a proceeding of intermediary measures for abuse of a dominant market position (Article 4 para. 2, Article 7 CartA) by the importer. A large part of the decision concerns the interpretation of an agreement of jurisdiction between the parties, and if such agreement had been entered into at all, reflecting a variety of cantonal, and federal decisions. The court confirmed that actions in violation of the CartA are torts. Further, the court held that a distrib - utor that had been involved in a variety of contract
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