SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
civil follow-on proceedings will increase in light of the current revision of the CartA, although there are no specific provisions on civil follow-on proceedings in antitrust matters in Switzerland. 2.2 Courts In the cantons of Zurich, Berne, St. Gallen and Aar - gau, so-called commercial courts have jurisdiction for antitrust matters. They are, however, not specialised in antitrust matters. Nevertheless, certain commercial courts (eg, in the Canton of Berne) retain part-time court members specialised in antitrust laws, predomi - nantly antitrust lawyers from private practice. In the absence of such commercial courts, private antitrust enforcement matters are assigned to com - mon civil courts. Nevertheless, Article 5 CPC, on the federal level, requires that the cantonal law desig - nate a court that has jurisdiction as the sole cantonal instance for “cartel law disputes” (ie, private antitrust enforcement matters). It further deserves to be mentioned that civil courts take on certain matters upon ComCo deciding not to pursue a certain matter when it mainly concerns individual competition law positions, and when it is of lesser importance to public enforcement. 2.3 Impact of Competition Authorities Decisions by ComCo have no binding effect on civil courts. Civil courts remain competent to establish and assess the facts of the case. Nevertheless, ComCo cases are important to any civil court procedure as ComCo is the dedicated and specialised Swiss admin - istrative body in charge of antitrust law. Civil courts are rather unlikely to deviate from ComCo decisions related to a certain case brought before them, and ComCo decisions will facilitate civil follow-on actions. If the legality of a restraint of competition is ques - tioned in a civil proceeding, the case has to be referred to ComCo to render an expert opinion (Article 15 Car - tA). The civil court, however, retains the discretion to determine how this expert opinion is taken into con - sideration. It is not binding on the court and should be treated like any other piece of evidence.
Foreign NCA decisions may be submitted by the par - ties as evidence. It is the duty of the court to assess such cases and decide, based on the principle of free evaluation of evidence, whether they are relevant and suited to influence the proceedings. 2.4 Proof The party claiming any right out of a disputed fact bears the burden of proof (Article 8 Swiss Civil Code; SR 210). This is a core principle of Swiss law. This means that the burden of proof mainly stays with the plaintiff in a civil antitrust case alleging a certain fact potentially favourable to it. Particular difficulties are connected to proving and quantifying damages. The court may rely on an estimate of damages if damages cannot be exactly quantified (Article 42 para. 1 CO). The evidence must be persuasive, and the court must be convinced that the facts a party has been alleg - ing have taken place. The court is free to assess the evidence – there are no specific rules for this process, but the court’s findings must not be arbitrary and must respect the principle of free evaluation of evidence. Article 5 para. 3 CartA presumes that efficient com - petition is eliminated in the case of “hard core” agree - ments in restraint of competition (agreements on price fixing, quota, and territorial market allocation as well as allocating trading partners). Once the nature of the agreement is established, the legal presumption must be rebutted, which requires considerable efforts from the parties. A similar presumption is stipulated for resale price maintenance, and vertical market fore - closure (Article 5 para. 4 CartA). Any residual restraint of competition in such cases remains considerable according to Federal Supreme Court case law. If the agreement, in a next step, turns out not to be eco - nomically efficient (Article 5 para. 2 CartA), the agree - ment remains illegal. Final ComCo decisions are generally binding on a civil court, and the court can only deviate from them with good reasons. While a ComCo decision that is not yet final holds less weight, civil courts will still typi - cally refer to these cases, as well as to those from the Federal Administrative Court (which is the court pre - ceding the Federal Supreme Court in administrative antitrust cases), and not deviate from it unless there
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