3 November 2014 – By decision of September 23, 2014 the Swiss Federal Administrative Court (“Court”) set aside a decision of the Swiss Competition Commission (“Comco”) by which four undertakings in the window fitting market were fined an aggregate of more than CHF 7 million due to illegal price fixing. The Court stated that the Comco had to establish the competition law infringement and that the principle “in dubio pro reo” applied also in cartel cases. This means that in case of doubt as to the illicit behaviour no violation triggering a sanction can be imposed. The Court further stated that Comco could not simply rely on the statements of a leniency applicant but that such statements had to be treated with caution and that Comco had to verify such statements. The Court accepted Comco’s finding that there was a horizontal agreement on prices by consenting to a price increase. However, the Court found that Comco did not sufficiently establish that the agreement deployed significant effects on the relevant market and did not adequately analyze whether the parties’ argument that they had been unable to impose the agreed upon price increases upon their customers. This was rightfully considered relevant by the Court because the Swiss Constitution only allows the Swiss Confederation to legislate against the “damaging effects of cartels”. Therefore, the mere intention to restrict competition would not be sufficient to impose any sanctions. As a consequence, the sanctions that were imposed on the three undertakings involved were found without sufficient basis and Comco’s respective decision was squashed. Comco will now have the opportunity to file an appeal against the Court’s decision to the Swiss Federal Supreme Court.
Dr. Peter Reinert heads Baker & McKenzie's Employment Law Practice Group in Zurich, and serves as co-head of the Competition and European Law team. Throughout his more than 20 years of practice, Mr. Reinert has advised numerous companies in complex labor and competition issues and has successfully represented clients in court and administrative proceedings.