SWITZERLAND Law and Practice Contributed by: Mani Reinert and Pascal Hachem, Bär & Karrer
1. Introduction 1.1 Current Framework for Private Antitrust Litigation The basis of the legislative framework for antitrust litigation is the Federal Act on the Amendment of the Swiss Civil Code of 30 March 1911 (the “Swiss Code of Obligations”; CO) and the Swiss Civil Procedure Code of 19 December 2008 (the “Civil Procedure Code”; CPC). These two laws are complemented by certain provi - sions in the Federal Act on Cartels and other Restraints of Competition of 6 October 1995 (the “Cartel Act”; CartA). The Cartel Act defines the available relief as well as the suspension of the limitation period if the Competition Commission (COMCO) opens a formal investigation (as of 2027 onwards), and provides that civil courts have to refer the antitrust assessment of a case to COMCO for a non-binding expert report. So far, civil antitrust litigation has been of minor signifi - cance in Switzerland for various reasons. The stand - ard of proof (full conviction of the court) is high, as are the requirements to substantiate factual allegations. The cost risks are significantly higher compared to filing a complaint at COMCO. COMCO provides a cheap avenue to a full investigation of a case. Most of the antitrust litigation to date has concerned litigation of car service dealers of selective distribu - tion networks whose contracts were terminated. The terminated service dealers requested the conclusion of new contracts in court by way of interim relief. All but one of these requests were rejected by the courts, mostly for procedural reasons (lack of jurisdiction due to an agreement on the place of jurisdiction, lack of urgency, lack of a prima facie case, etc). Only one court (the Cantonal Court of Lucerne) concluded on a preliminary basis that the terminated dealer may have a claim to being awarded a new dealer contract. Another notable ongoing litigation is the CHF142 mil - lion claim of 35 merchants (including grocery chains, tour operators, airline carriers) against Visa and Mas - terCard for damages arising out of allegedly unlawfully charged interchange fees.
1.2 Recent Developments In 2025 the Swiss Parliament introduced the following changes to the Cartel Act: • customers also have standing (not just corpora - tions); • the available relief also includes the declaration of unlawfulness of a restriction of competition; and • the limitation period of claims for damages, sat - isfaction or profits does not start or is suspended when COMCO opens a formal investigation into the conduct in question, until COMCO’s decision has become final. These changes will enter into force in 2027 (presum - ably in July 2027). 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Any person whose economic interests are threatened or harmed by an unlawful restriction of competition is entitled to the following relief: • removal of or desistance from the restriction of competition; • damages based on the Code of Obligations; • satisfaction based on the Code of Obligations; • surrender of unlawfully earned profits based on the Code of Obligations’ provisions on agency without authority; and • the declaration that the restriction of competition is unlawful. 2.2 Courts Switzerland has 26 cantons. Each of these cantons has to designate a court that handles claims based on competition law. This is either the commercial court (in the cantons of Aargau, Berne, St Gallen and Zurich) or the upper civil court of that canton. However, these courts are not specialised in competition law. As for claims that are not primarily based on competi - tion law, the ordinary courts have jurisdiction.
182 A NTITRUST LI T IGATI O N 2026
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