SWITZERLAND Trends and Developments Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
agreements on prices which are presumed to elimi - nate competition, and which are subject to high fines should they not be justified for economic reasons – which requires a case-by-case assessment, and for which the burden of proof is high. Bid-rigging cases, especially in the construction sec - tor, continue to rank among ComCo’s top enforce - ment priorities, and further decisions have recently been issued in this area. The cantons and municipali - ties are increasingly aware of the issue, and they play an essential role in preventing, and discovering bid- rigging cases. Some cantons even apply dedicated software to evaluate offers in public tender proceed - ings and to discover illicit collusion. The probability of follow-on litigation subsequent to ComCo bid-rigging cases remains considerable, as well as sanctions set out by public procurement law (implementing the GPA of 2012). In terms of legislation, the partial revision of the CartA is ongoing. It focuses on if and how detrimental effects of agreements in restraint of competition are to be assessed in detail (in particular, in “hard core” cases on price- and quota-fixing, market and customer allo - cation as well as resale price maintenance and vertical market foreclosure), in contrast to the current, rather rigid “per se” approach in such cases as set out by
the Federal Supreme Court (the “Gaba/Elmex” case). Further, it focuses on the reform of merger control (the introduction of the SIEC test in Switzerland) and on a review of the setup of the competition authori - ties (“institutional reform”). As regards the institu - tional reform, several issues in the procedural rela - tion between ComCo (as the deciding body), and its Secretariat (as the investigating body) are discussed. There is widespread criticism that ComCo and the Secretariat are not sufficiently separated, and that parties of an investigation may suffer from procedural disadvantages which cannot be justified under basic procedural rules. This approach, of course, is contro - versial. It must further be borne in mind that the partial reform relates to a fairly large number of parliamentary procedural requests, and that it is very demanding to take all of them into account in a coherent picture. The parliamentary process is still in progress. It can be expected that it will be concluded in the near future. Judging by the various deliberations by Parliament, there is a good chance that the bill for the revised CartA will be accepted, subject to an optional refer - endum (ie, a democratic, public voting process if a certain number of citizens request such voting). It also remains uncertain when it will enter into legal force as this date will ultimately be set by the Federal Council (ie, the federal government).
229 CHAMBERS.COM
Powered by FlippingBook