SWITZERLAND Trends and Developments Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
Wenger Plattner Rechtsanwälte Steuerberater Notare Seestrasse 39 | Postfach 602 CH-8700 Küsnacht-Zürich Switzerland Tel: +41 43 222 38 00 Email: zuerich@wenger-plattner.ch Web: wenger-plattner.ch
Beyond Bid-Rigging: ComCo’s Expanding Agenda in Competition Law In 2024, the Swiss Competition Commission (Com - Co) has, inter alia, carried out 24 investigations (21 of them pending from previous years), 11 preliminary investigations, and about 50 market monitoring proce - dures, dealt with 43 merger procedures and rendered opinions in approximately 350 official consultations. ComCo’s workload remains high, and ComCo obvi - ously is very active. In the reporting year, however, only one new civil anti - trust case before a cantonal court (private enforce - ment of the Swiss Cartel Act; CartA, SR 251) has been publicly reported (August 2024, Supreme Court of the canton of Zug). It concerned the termination of an extensive services contract of an authorised car distributor by the importer. The distributor had been involved in the importer’s distribution system for almost 40 years. The case was decided in a pro - ceeding for interim measures, and was dismissed. The case mainly concerned the interpretation of an agreement of jurisdiction within Switzerland between the parties, and whether such an agreement had been entered into at all; it reflects a variety of cantonal, and federal decisions which, however, are of procedural rather than substantive antitrust law interest. The main takeaways from this case are, from a substantive anti - trust perspective, that distributors and other business partners of allegedly “strong” counterparties must be cautious and vigilant in contract negotiations (in par - ticular, concerning termination issues), and that they must monitor and document the development of their
business relation to be able to file a successful claim for violation of the CartA before a court. The court further held that a distributor which had been involved in a variety of contract negotiations in the past, and which has been 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. Dependence on a certain business partner must not be self-inflicted. Otherwise, taking actions under the CartA – be it in an administrative, or a civil procedure – is unlikely to be successful. In terms of private enforcement of antitrust law, sev - eral ComCo cases of indirect relevance are worth not - ing. Relative market power After rendering a first decision on the abuse of relative market power (Article 4 para. 2bis and Article 7 CartA) in 2024 (“Fresenius Kabi / Galexis” on the distribu - tion of medicinal products), ComCo rendered a sec - ond decision in July 2025. It concerns relative market power in the automotive sector. After many years of co-operation, BMW terminated a distribution and ser - vice contract with one of its distributors. Before this step, BMW had allegedly informed the distributor that the relationship was to be continued. This is why the distributor had considerably invested in its business development. The termination of the relationship thus was unexpected. The distributor had no opportunity to switch to another manufacturer of cars, and the manufacturer was considered to hold relative market
227 CHAMBERS.COM
Powered by FlippingBook