SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
It should be mentioned that, in ComCo proceedings, normal (low-ranking) and former employees of a com - pany subject to an investigation will be interrogated as witnesses. They will not benefit from the principle of nemo tenetur with regard to the company. Only high- ranking, current employees, or members of the man - agement board or of the board of directors may invoke the nemo tenetur principle on behalf of the company. 7.2 Expert Witness Role and Procedure Two types of expert witnesses are typically distin - guished: experts consulted directly by the parties and court-appointed experts. As of 1 January 2025, both types are considered as evidence. However, the latter will, in most cases, carry more weight in the consid - eration of the evidence, though the court is entirely free in their weighing of the evidence. If the parties appoint their own experts, they will typi - cally submit a written statement by the expert with their briefs. If requested by the parties, the court may later choose to question the expert. A court-appointed expert opinion can be requested by the parties or ordered ex officio. If the legality of a restraint of competition is questioned in the course of civil proceedings, the case shall be referred to ComCo for an expert report (Article 15 para. 1 CartA). Unlike a party expert, a court-appointed expert must be neu - tral. Before giving their expert opinion, they are cau - tioned under the criminal penalty of perjury. The court will, after having consulted the parties, choose the experts, instruct them and pose the necessary ques - tions. In most cases, the experts submit their answers in written form. The court may also choose to hear the experts orally. 8. Damages 8.1 Damages: Assessment, Passing On and Interest Awards for punitive damages are foreign to Swiss law. However, plaintiffs affected by a breach of antitrust law may demand restitution of the illegal gain the defend - ant has realised based on the illicit conduct. The latter may be relevant if the plaintiff fails to substantiate the amount of its losses when filing for damages.
There are no specific rules in Swiss law on the pass - ing-on defence. However, the defence is admissible, also in light of the prohibition of overcompensation of the plaintiff. If the plaintiff has not suffered any losses due to the passing on of any alleged anticompetitive behaviour by the defendant, such losses may not be claimed from the plaintiff, and only the remaining losses (if any) are subject to a civil claim. Interest on damages awarded for a breach of antitrust law is normally payable at the rate of 5% per annum, unless the parties have agreed on a different rate. If a breach of antitrust law has been caused by sev - eral undertakings which are defending parties in a civil procedure, they are jointly and severally liable for the damages caused. The plaintiff may claim the full amount of the damages awarded from each defend - ant, also from one defendant only (following a “deep pocket” approach). The selected defendant may sub - rogate against the other defendants. Civil liability of leniency applicants in a ComCo pro - ceeding is not limited. However, information on and provided by leniency applicants in a ComCo proceed - ing is afforded a relatively high level of protection against disclosure to civil claimants. ComCo, how - ever, does not actively protect leniency applicants from civil claims, although it has been taking care to safeguard leniency information for the sake of the leni - ency system. 9. Liability and Contribution 9.1 Joint and Several Liability According to the current revision of the CartA, a potential fine against a defendant in an administra - tive procedure before ComCo may be reduced if the defendant has taken voluntary steps to eliminate the hindrance caused, or to pay damages and satisfac - tion in accordance with the CO. This, however, is only an indirect effect on an administrative procedure produced by alternative dispute resolution, or a civil procedure.
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