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

  Pursuant to Section 12, a person hindered from entering a market by an unlawful restraint of competition may request damages and compensation in accordance with the Code of Obligations. The same person may also request that illicitly earned profits be paid back in accordance with the legal provisions on conducting business without a mandate. Same actions may be taken by a person who is prevented …

Enforcement by ordinary courts

Sections 26, 27 and 28 of the Cartel Act outline the powers of the Commission Secretariat concerning the conduct of investigations. The Secretariat may conduct preliminary inquiries on its own initiative, at the request of undertakings concerned or based on information received from third parties (Sections 26(1)). The main purpose of the preliminary investigation is to gather the information necessary to the Secretariat to determine whether the conduct has an appreciable effect on competition.

Where signs of an unlawful restraint on competition are deemed to exist, the Secretariat must open an investigation with the consent of a member of the Commission's presiding body (Section 27(1)). Notice that an investigation has been opened must be given in an official publication (Section 28(1)). During the course of an investigation, the competition authorities have the right to enter the premises of an undertaking and carry out inspections and searches. Section 40 obliges the parties concerned by an investigation to supply any useful information or evidence. Refusal to comply with this obligation is governed by Section 16 of the Act on administrative procedure (refusal to testify).

The provisions of Section 64 of the Federal Act on federal civil procedure of 4 December 1947 apply to the hearing procedure. False oral testimony incurs criminal liability.

Once the investigation is terminated, the Secretariat will draft a fact report to be submitted to the Competition Commission, with whom the final decision-making power lies.

The 2003 amendments gave more investigative powers to the competition authorities. They added several provisions to Section 42 of the Act: competition authorities are empowered to order evidentiary search and seizure. Section 45 to 50 of Federal Act of 22 March 1974 on administrative criminal law will be applicable. Search and seizures are to be ordered upon request of the Secretariat by a president of the Commission.

Complaints and investigations

  The draft decision issued by the Secretariat is submitted to the parties for comment. Before closing proceedings, the Competition Commission may conduct hearings and propose amicable settlements which may be combined with a fine.

Proceedings before the Competition Commission

  Interim measures are available in competition matters according to the general rules laid down by the Swiss Civil Procedure Code (CPC). Under Section 261 CPC, the applicant must credibly show that: i) its rights have been violated or such violation is anticipated; and ii) the violation threatens to cause harm that is not easily reparable to the applicant. However, the court may refrain from ordering interim measures if the opposing party provides an appropriate security.

  Pursuant to Section 265 CPC, in cases of special urgency, and in particular where there is a risk that the enforcement of the measure will be frustrated, the court may order the interim measure immediately and without hearing the opposing party. Before ordering interim measures, the court may, ex officio, order the applicant to provide security.

Interim relief

  Pursuant to Section 12, a person hindered from entering a market by an unlawful restraint of competition may request damages and compensation in accordance with the Code of Obligations. The same person may also request that illicitly earned profits be paid back in accordance with the legal provisions on conducting business without a mandate. Same actions may be taken by a person who is prevented from competing by the implementation of a valid restraint of competition or may be hindered more than is warranted by the application of said restriction (Section 12(3)).

  Where the lawfulness of a restraint on competition is called into question over the course of civil proceedings, the case must be transferred to the Commission to obtain an advisory opinion. However, if a restraint that is unlawful per se is said to be necessary to safeguarding of predominant public interest, the matter must be referred to the Federal Council for a ruling (Section 15).

Global Competition Law

1313. Enforcement by ordinary courts

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Les notions juridiques connexes

1313. Enforcement by ordinary courts

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise