1 INTRODUCTION
On
The last revision of the
The parallel discussion on the reform of the institutional setup of the competition authorities is not part of the current revision. This institutional reform is being examined in parallel. On
2 MAIN CHANGES
2.1 Core Element: Modernization of Merger Control
2.1.1 Lower Intervention Thresholds based on the SIEC Test
A core element of the revision is the modernization of merger control. The adjustment to international practice is achieved by changing the standard of review from the current qualified market dominance test (dominance plus) to the "Significant Impediment to
The difference between the qualified market dominance test applied in
The SIEC test can also be used to intervene in mergers that significantly impede competition but are below the market dominance threshold. This could be applied in particular if a merger in an oligopoly market does not lead to the creation of a dominant position, but the competitive pressure in the market is significantly reduced.
Consequently, the current intervention thresholds will be significantly reduced, which is why more in-depth review procedures (Phase II) can be expected. Overall, the complexity of the notifications and procedures will probably increase and generate additional effort and costs.
The effectiveness of Swiss antitrust law is improved.
2.1.2 Consideration of Efficiency Advantages
With the SIEC test, efficiencies of a merger can be considered more comprehensively, provided they are justified and verifiable and are specifically brought about by the merger. Until now, only improvements in competitive conditions in another market could be considered.
The SIEC test thus allows to balance between undesirable effects on competition and desired efficiency gains. However, the detailed presentation of efficiency gains will also generate additional efforts, which may lead to a prolongation of the procedure. The possibility of extending the deadlines in the review procedure with the consent of the reporting companies, which is newly provided for in the revised
2.1.3 Simplification of the Notification Procedure for International Mergers
In addition, duplications in international mergers can in some cases be avoided and cooperation with the
2.2 Strengthening of Civil Antitrust Law
Another part of the proposed revision is to strengthen civil antitrust law. In the future, all those affected by an unlawful restriction of competition, in particular also consumers and the public sector, will be able to file civil lawsuits based on antitrust law.
Furthermore, a suspension of the statute of limitations for civil law claims arising from unlawful restraint of competition until a final decision by the ComCo and a claim for a declaration of unlawful restraint of competition are introduced. A new possibility is also created to take into account voluntary reparation payments to injured parties in the event of an administrative sanction, even after the fact, in order to reduce the sanction.
Strengthening civil antitrust law may result in companies potentially facing more civil antitrust claims.
2.3 Improvement of the Opposition Procedure
The opposition procedure allows for a preliminary examination by the ComCo whether there is violation of antitrust law prior to the implementation and thus serves to ensure legal certainty. This procedure is strengthened and made more practicable. Accordingly, the direct sanction risk for companies with regard to the reported conduct falls away if the competition authorities do not open an investigation within the objection period. In addition, the objection period is reduced from five to two months.
The merger control is modernized by the SIEC test.
2.4 Extension of Investigative Measures to Searches of Persons
As part of the revision, the investigative measures are extended in order to include the possibility of personal searches. This extension is being justified by the alleged fact that it has been shown in practice that employees of a company affected by a dawn raid may be tempted to take possible evidence and hide it on their own body. In addition, it is explicitly stated that objects that cannot be clearly assigned to premises, such as vehicles, can also be searched by the competition authorities.
2.5 Implementation of Parliamentary Initiatives
2.5.1 Time Limits and Party Compensation before ComCo
Based on the "comply or explain" principle (comply with regulations or explain deviations from them), deadlines for procedures are introduced for all instances. Of the total period of 60 months (from the opening of a formal investigation), 30 months are allocated to the ComCo, 18 months to the Federal Administrative Court and 12 months to the
In addition, companies will in future be given the opportunity to be compensated for their expenses depending on the outcome of the first-instance administrative proceedings, provided that the investigation proceedings pursuant to Article 27
Strengthening the civil antitrust law and improving the opposition procedure.
2.5.2 Consideration of Qualitative and Quantitative Criteria
Further adjustments demanded by a parliamentary motion aim at reintroducing the consideration of quantitative criteria in the assessment of agreements affecting competition.
Accordingly, the draft law specifies that both qualitative and quantitative criteria are to be taken into account when assessing an agreement. With regard to the quantitative criteria relevant for agreements affecting competition, this amendment is intended to restore the de facto legal situation prior to the decision of the
Finally, the competition authorities are given the option of waiving an investigation or closing an investigation if there are indications of a minor infringement.
2.5.3 Principle of Investigation, Presumption of Innocence and Burden of Proof
The implementation of another parliamentary motion aims to strengthen various procedural and substantive principles in the
3 CONCLUSION AND OUTLOOK
The reintroduction of the quantitative criteria test for hardcore competition agreements leads to additional protection for companies, but does not hinder the effective enforcement of the
In a next step, the bill will now be discussed in parliament. The revised
Originally published
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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