SWITZERLAND Law and Practice Contributed by: Mani Reinert and Pascal Hachem, Bär & Karrer
3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations The right to claim damages or satisfaction based on tort law prescribes three years from the date on which the person suffering damage became aware of the loss, damage or injury and of the identity of the person liable for it, but in any event ten years after the date on which the harmful conduct took place or ceased. If the claim is based on contract law, it is prescribed as ten years. If COMCO opens a formal investigation, the limitation period does not begin or is suspended from the initia - tion of COMCO’s investigation until COMCO’s deci - sion has become final. 3.2 Typical Length of Private Antitrust Litigation A private antitrust litigation can be expected to take between two and four years. Under the Civil Proce - dure Code, every canton designates a single instance for antitrust disputes. Any decision from such single instance can only be appealed to the Swiss Supreme Court. The Swiss Supreme Court’s review is then limited to legal reasoning of the previous instance; it reviews the factual grounds of the appealed decision only in exceptional circumstances. The bulk of the time will be taken up at the first instance, whereas proceedings before the Swiss Supreme Court are typically swift, given that the statu - tory appeal period is only 30 days and the court, after having received the appeal, hardly ever grants longer periods for subsequent submissions and rarely allows more than two rounds of submissions. Preliminary injunctions can be obtained very fast. In particularly urgent cases, Swiss courts may even grant measures ex parte. If such measures are appealed, this can prolong the proceedings, but usually injunc - tion proceedings are fully concluded between six and ten months.
2.3 Impact of Competition Authorities Decisions of COMCO are not binding on the courts. The same applies to decisions of foreign national competition authorities (NCAs). While decisions of competition authorities have some authoritative value, the courts are free to assess the evidence differently and to take a different legal view. COMCO has no direct role in the proceeding before the court. If, however, it is unclear whether a con - duct is unlawful under the Cartel Act, the court refers the case to COMCO for an expert report. This expert report is based on the facts that the court presents to COMCO. COMCO does not conduct any fact finding, and the expert report is not binding on the court. 2.4 Proof As regards the burden and standard of proof, the gen - eral principles of civil litigation apply. The party deriv - ing rights from an alleged fact must prove its exist - ence. There are generally no legal presumptions, in particular in relation to the amount of damages and the causal link between the restriction of competition and the damage. One exception is the presumption that price fixing, quota and market sharing agree - ments between competitors, as well as the restriction of passive sales of resellers and resale price mainte - nance, eliminate effective competition. However, this presumption can be rebutted in most cases. NCA decisions have some probative value but are not binding. They may be helpful in establishing that there was an agreement, a restriction of competition or a dominant position of the defendant, but on the essential point – ie, the amount of damages – they are often silent, as an NCA typically does not have to prove any damage to show that there was a restriction of competition. The standard of proof is generally full-proof – ie, the full conviction of the court. In relation to injunctive relief, the standard of proof is prima facie evidence. 2.5 Pass-On Defence The defendant can claim that the damages were passed on to the next level of trade. The defendant carries the burden of proof for the pass-on defence.
183 A NTITRUST LI T IGATI O N 2026
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