Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

According to Section 5 of the Cartel Act, only agreements that are not justified on grounds of economic efficiency and that “significantly affect competition in the market for certain goods and services”, as well as “all agreements that lead to the suppression of effective competition”, are prohibited under the Act.
Pursuant to the terms of the Cartel Act, the following agreements are considered a …

The prohibition

According to Section 5 of the Cartel Act, only agreements that are not justified on grounds of economic efficiency and that “significantly affect competition in the market for certain goods and services”, as well as “all agreements that lead to the suppression of effective competition”, are prohibited under the Act.

Pursuant to the terms of the Cartel Act, the following agreements are considered as creating a presumption of anticompetitive effect, namely those that:

- restrict the quantity of goods or services to be produced;

To this list the 2003 amendments added agreements between undertakings occupying different levels on the market that set minimum or fixed selling prices, and distribution contracts that assign territories where selling by other authorized suppliers is excluded.

Vertical agreements are presumed not to have an appreciable effect on the market if none of the participating undertakings has a market share in excess of 15% and if they do not contain any hardcore restrictions (e.g. price-fixing). However, this de minimis rule does not apply to agreements that have a cumulative effect on the market.

Regarding vertical agreements between businesses at various market levels, the Competition Commission (COMCO) updated its guidelines on 12 December 2022. These new guidelines are based on the EU guidelines on vertical restraints while still taking into account the specific legal and economic conditions in Switzerland.

Furthermore, on 29 November 2023, the Federal Council adopted the Ordinance on the Competition Law Treatment of Vertical Agreements in the Motor Vehicle Sector. The Ordinance entered into force on 1st January 2024.

As regards the notion of economic efficiency set out in Section 5, pursuant to Section 5(2), an agreement can be justified on this ground where:

- it does not allow the participating undertakings to eliminate effective competition;

- it is necessary to reduce production or distribution costs, promote know-how and R&D, or rationalize production methods.

To obtain an exemption, parties must notify their agreements.

Further, pursuant to Section 8 of the Cartel Act, agreements, the anticompetitive effect of which is confirmed by the control authorities, may be exempted if in exceptional cases they are necessary for compelling public interest reasons. This exceptional authorization is granted by the Federal Council at the request of the parties. Public interest has been considered to extend, inter alia, to notions such as the protection of employee rights, the environment, and cultural interests.

Finally, Section 6 of the Cartel Act provides for the adoption of ordinances and communications recognizing particular forms of cooperation as justifiable, in particular as regards:

- specialization or rationalization agreements;

- agreements granting exclusive licenses for intellectual property rights or granting exclusive rights to deal in goods and services.

The 2003 amendments added agreements that aim to improve SME competitiveness, as long as they have little impact on the market. Only two communications have been adopted by the Competition Commission so far: the Communication of 18 February 2002 on the assessment of vertical agreements, updated in July 2007, June 2010, May 2017, and lastly on 12 December 2022, and the Ordinance on the Competition Law Treatment of Vertical Agreements in the Motor Vehicle Sector, which was adopted on 29 November 2023, and hence replaced the COMCO's Communication of 21 October 2002 on vertical agreements in the motor vehicle distribution sector, updated in June 2015 and in September 2019. The Communication on vertical agreements is very much inspired by the EU Guidelines on vertical restraints. An Explanatory Note, updated in June 2017, in April 2018, and in December 2022, provides guidance on the interpretation of the Communication's provisions. As in EU law, the Communication lists those hardcore restrictions that significantly affect the market: resale price maintenance, limitation of the distributor's selling territory, non-competing clauses exceeding five years during the validity of the contract and exceeding one year after termination of the contract. Under the updated version of the Communication on vertical agreements, issued following an important judgment of the Swiss Federal Supreme Court rendered on 28 June 2016, agreements providing for resale price maintenance or restricting a distributor's ability to engage in passive sales are now deemed to be restrictions by object appreciably affecting competition without it being necessary to establish an actual effect on competition.

Global Competition Law

1302. The prohibition

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Les notions juridiques connexes

1302. The prohibition

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Les notions juridiques connexes

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