SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Currently, any undertaking hindered by an unlawful restraint of competition from entering or competing in a market is entitled to request: • the elimination of or desistance from the hindrance; • damages and satisfaction (in accordance with the Swiss Code of Obligations; CO; SR 220); and • surrender of unlawfully earned profits in accord - ance with the provisions on agency without author - ity. Hindrances of competition, in particular, include the refusal to deal and discriminatory measures. The rights just set out are also accorded to persons who are hin - dered by a lawful restraint of competition more than is necessary for the implementation of that restraint (ie, disproportionate restraints; Article 12 CartA). To enforce the right to elimination and desistance, the courts may, at the plaintiff’s request, rule that any con - tracts are null and void in whole or in part, and that the person responsible for the hindrance of competition must enter into contracts with the person so hindered on terms that are in line with the market or the industry standard (Article 13 CartA). Although Article 13 and Article 15 CartA provide some specific rules for private antitrust enforcement proce - dures, private antitrust enforcement is (procedurally) governed by the rules of the Swiss Code of Civil Pro - cedure (CPC). Parties are free to initiate either a proceeding before ComCo (public enforcement by means of administra - tive procedure), or before a civil court (private enforce - ment by means of civil procedure). No previous deci - sion or proceeding by ComCo is required to file a civil action. It may, however, be efficient for a civil plaintiff (or defendant) to rely on the findings of ComCo in a public enforcement procedure. Nevertheless, the civil court remains solely competent to gather and assess the facts according to the CPC. Any findings from a public enforcement proceeding may facilitate this proceeding. This is why it is to be expected that
negotiations, and which is aware of industry practices over a long period of time, can hardly be surprised by the termination of a distribution contract, even though the importer may have a strong market position. The distributor’s request for interim measures was dismissed. The main takeaway from this case, from a substantive antitrust perspective, is that distribu - tors and other business partners of allegedly “strong” counterparties must be cautious and vigilant in con - tract negotiations, and must monitor and document the development of their business relation to be able to file a successful claim for violation of the CartA (in the case at issue: abuse of a dominant market posi - tion) before a court. Interestingly, the case apparently did not relate to issues of relative market power. 1.2 Recent Developments The CartA is currently under revision. The revision aims, inter alia, at facilitating civil actions based on the CartA. Civil antitrust case law (ie, private enforcement) is still scarce in Switzerland – only a handful of cases have been decided by Swiss civil courts by now. The revision plans to introduce the possibility of a declaratory judgment that a certain behaviour has been illegal under the CartA. Further, not only under - takings, but all persons and entities affected by illicit acts relevant under the CartA may file civil actions – including consumers and actors from the public sector (such as authorities awarding public contracts; ie, the Federation, cantons, and municipalities). Finally, the limitation rules for filing a civil complaint are planned to be extended: limitation periods are to be suspend - ed during a ComCo investigation until a ComCo deci - sion (with or without appeal) has become final. It is expected that this change will considerably facilitate civil antitrust claims as limitation issues have often been detrimental to civil enforcement of the CartA. It is expected that the revision will enter into force in the near future. However, the revision process before the Swiss Parliament has not yet been concluded, and surprises cannot be excluded.
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