SWITZERLAND Trends and Developments Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
power vis-à-vis the distributor. During the ComCo investigation, both the manufacturer and the distribu - tor agreed on a limited prolongation of their relation - ship. The investigation has therefore been closed. The case shows that ComCo is still eager to render leading cases in the field of relative market power. This may promote civil litigation in this field in the future, relating to ComCo case law. This is also shown by the fact that ComCo initiated a new investigation on relative market power against Beiersorf/Nivea in June 2025. ComCo is investigating whether Beiersdorf, with its household brand “Nivea”, holds relative market power vis-à-vis Migros, one of Switzerland’s leading retailers. Before that, ComCo held, in another investigation, that the French press company “Madrigall” held, and abused, relative mar - ket power vis-à-vis the Swiss bookstore “Payot” as regards the distribution of French books in Switzer - land. Madrigall had failed to supply Payot at conditions similar to those in France. Madrigall has been sen - tenced to allow direct imports of books from France by Payot at the conditions applicable in France. Such constellations are of increasing relevance to ComCo due to the latest legislative steps taken against the “high price island situation” in Switzerland. The latter ComCo led a preliminary investigation on employment markets in several industries. It concluded that com - panies had been exchanging information on wages, and on other benefits for employees. However, no investigation has been initiated. Rather, ComCo is currently drafting rules of best practice together with the industries involved. This, however, demonstrates that ComCo is increasingly interested in employment markets as has been the case for a long time in other jurisdictions. Agreements on wages and other ben - efits, as well as no-poaching agreements, are also to be avoided in Switzerland. The results of this process will be crucial for the development of antitrust law in case is under appeal. Employment markets
relevant when a manufacturer, or an importer, consid - ers implementing measures that can be associated with resale price maintenance (RPM). RPM, which is prohibited under the CartA (Article 5 para. 4) and presumed to eliminate competition, is subject to high fines. ComCo essentially enforces the strict rules set out in EU law on the distinction between distribution and agency contracts. However, the decisions dem - onstrate that a detailed, case-by-case analysis is per - formed, requiring that a considerable number of crite - ria be met to establish a “genuine” agency system. It is advisable for companies involved in a distribution system to ask ComCo for guidance, and ComCo will – as the cases show – ask detailed questions on the system. The new case law by ComCo on this issue has also been noted in Europe and should be taken seriously, as its systematic approach could potentially influence future EU jurisprudence. Purchasing consortia In a complex investigation involving “Markant Han - dels- und Industriewaren-Vermittlungs AG” as well as 16 retailers, ComCo specified the conditions under which it deems purchasing consortia to be in line with the CartA. Markant offered several services to retailers, including financial services. Markant granted kickbacks, and it also negotiated delivery conditions and rebates with suppliers in their relationship with the retailers. The case is very complex, and the deci - sion has not yet been published; only press releases are available to date. ComCo, however, seems to acknowledge that the creation of countervailing power by a purchasing consortium is, under certain circum - stances, in line with the CartA and pro-competitive as it may be conducive to creating lower purchase prices. However, non-transparent kickbacks, as well as col - lective measures to enforce certain measures, remain problematic. The full decision, once published, is expected to clarify the circumstances under which purchasing consortia are considered either pro- or anti-competitive. This is a critical question that remains unresolved in Switzerland, as existing decisions from ComCo and its Secretariat are controversial and open to inconsistent interpretation. In any case, it must be borne in mind that, according to ComCo case law, purchasing consortia may still constitute horizontal
the Swiss employment market. Agency v distribution contracts
ComCo, in September and October 2024, rendered two decisions on the distinction between distribution, and agency contracts. This distinction is particularly
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