SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
6.3 Leniency and Settlement Agreements Currently, ComCo will not disclose leniency docu - ments to claimants in a civil procedure. Further, only parties to a ComCo investigation may access leni - ency files. They are, however, prohibited by restric - tive ComCo rules from taking copies, or from using leniency information to back up a civil claim. This also encompasses attorneys acting for such parties. Documents produced on settlement agreements may not be used for a civil claim, either. However, a settle - ment decision (which ideally is shorter than a regular ComCo decision) may contain certain information that may be used by a plaintiff in a civil procedure. It is, however, a matter of negotiation between ComCo and the party to a settlement agreement as to how much information will be used in such a decision. If a parallel investigation is pending before the EU Commission, and if the leniency applicant has agreed to disclose leniency information to the EU Commis - sion (“waiver”), it is possible for the plaintiff to gain access to such information. Any restrictions on the use of such information for civil actions are subject to EU regulation. The same is true regarding parallel investigations in Germany. Switzerland, the EU, and Germany have concluded bilateral treaties on co- operation in competition law matters. Witness testimonies can be requested by the par - ties. If the court approves the request, the witnesses are typically heard orally in front of a judge. Since 1 January 2025, they can be conducted by video call under certain conditions. The questions are asked by the judge; however, the parties (and their counsels, respectively) may request additional questions or, with the court’s consent, ask them directly. Written testimonies can be obtained by the court if the testimony in person seems unnecessary. Also, ComCo will send out questionnaires to witnesses in administrative proceedings, pointing out their respec - tive rights as witnesses. 7. Witness and Expert Opinions 7.1 Witness Procedure
may have a right to information based on substantive law. However, the CartA does not provide for such rules or any right of the plaintiff to access information in a private enforcement proceeding. Once the action has commenced, the parties can request the taking of evidence for their claims. How - ever, it is up to the court to order the taking of evi - dence. After having heard both sides’ factual claims and evidence requests, the court will decide which requests to grant. It will decide whether to allow the submitted documents into the evidence phase and which witnesses to hear, etc. If a party knows of the existence of a document, but they are not in control of it, the court can order the other party to submit it. However, it must be shown that this information is directly relevant to the case. A plaintiff, as a party to an administrative proceeding before ComCo, may access the ComCo file except for leniency documents. To date, it has not been decid - ed whether ComCo must open its files to a cantonal civil court. The Federal Supreme Court has, however, ruled that a canton must be granted partial access to a ComCo file if it contemplates filing a civil action (eg, in bid rigging cases). ComCo still takes great care to safeguard leniency information from access by third parties, in particular parties to civil or criminal pro - ceedings. This also encompasses the blacklining and paraphrasing of decisions relying on leniency informa - tion – but this is typically subject to disputes in any given case. 6.2 Legal Professional Privilege Practising and registered attorneys are protected by the legal professional privilege as far as they are act - ing for a client in a specific case. They must not be ordered to testify against a client, or to produce docu - ments regarding a client who has been retaining them as counsel. The privilege has a broad effect, and it applies regardless of when any documents have been created, or where they are located. In contrast, the legal professional privilege does not apply to in-house counsels, or to lawyers not acting as retained attorneys (eg, as board members and the like).
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