SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
are convincing arguments in the specific case to take a different course of action. 2.5 Pass-On Defence The defendant may use the pass-on defence and claim that the plaintiff has not suffered any damage from an act allegedly violating the CartA as the plaintiff was able to pass on higher prices (or other allegedly anti-competitive effects) to its customers. The plaintiff must still be fully compensated for any damages suf - fered, but it must not be awarded any compensation going beyond such damage. The defendant bears the burden of proof for the pass-on defence. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations Private antitrust claims are a matter of tort law in terms of limitation and governed by the CO (Article 67). A claim for restitution on the grounds of unjust enrich - ment becomes time-barred three years after the date on which the person suffering damage learned of his or her claim, and in any event ten years from the date on which the claim first arose. Currently, a ComCo proceeding can influence the plaintiff’s knowledge of any potential damage. This may put the plaintiff in a difficult situation as it is not always evident when such knowledge has become sufficient to file a civil action – which means that the limitation period may expire before a ComCo pro - ceeding has produced solid evidence. This situation is intended to be altered by the current revision of the CartA (see 1.2 Recent Developments ). 3.2 Typical Length of Private Antitrust Litigation The duration of a private antitrust litigation heavily depends on the specific case. It is influenced, among other factors, by the urgency of the matter, the type of procedure applicable, the workload of the compe - tent court, the length of deadlines for briefs, the types of proofs requested and approved, possible suspen - sions of the proceedings and possible appeals. The proceedings can, therefore, last anywhere between
a few months (particularly for injunctions) to several years.
4. Class and Collective Actions 4.1 Statutory Basis
Swiss law does not recognise class actions. Never - theless, the growing prevalence of class actions in Europe in recent years has prompted renewed debate on their possible introduction in Switzerland. In March 2024, however, the National Council declined to open discussions on the matter. The proposal will now be considered by the Council of States, which may ulti - mately reject it definitively. However, joint actions of several parties are possi - ble under certain circumstances, and in some cases are even mandatory. Two or more persons may jointly appear as plaintiffs or be sued as joint defendants, provided (i) rights and duties resulting from similar cir - cumstances or legal grounds are to be assessed; (ii) the individual cases are not subject to different types of procedures; and (iii) the same court has jurisdiction (Article 71 CPC). The joinder is mandatory if two or more persons are in a legal relationship that calls for one single decision with effect for all of them (Article 70 CPC). In both cases, the joint parties may appoint a joint representative if they wish. Furthermore, under certain conditions, associations can sue in the name of the association for groups of persons. However, an association cannot claim dam - ages for itself, or for the members of the group. It can merely request the court to prohibit an imminent violation, put an end to an ongoing violation or estab - lish the unlawful character of a violation if the latter continues to have adverse effects. 4.2 Opting In or Out As class action suits are not available in Switzerland, this is not applicable (see 4.1 Statutory Basis ). While joint actions are possible (see, also, 4.1 Statutory Basis ), the parties to the proceedings are identified at the start of the procedure and typically cannot be changed or added later.
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