Dr Sébastien Gobat of Troller Hitz Troller shares his experiences with us on this article, diving deeper into the method concerned in litigating cartel proceedings and different antitrust issues.
What are the important thing challenges when litigating on antitrust instances?
A cartel continuing sometimes begins with a ‘daybreak raid’ by the Swiss Competitors Fee (COMCO) on firms that will doubtlessly take part in an illegal settlement or are allegedly abusing their dominant place. It’s due to this fact essential to be notably reactive and, ideally, already help the businesses involved of their premises throughout the daybreak raid. The subsequent step is to rapidly perceive what’s at stake within the case. This implies understanding the financial functioning of the related market in industrial sectors which are typically fully new to me – however that is additionally what makes my job so thrilling. The comparatively lengthy period of the proceedings – a number of years if all treatments are exhausted – and the comparatively advanced authorized points raised by these instances characterize additional challenges.
What are the most typical violations of competitors regulation in Switzerland?
The most typical antitrust violations fall into two classes: 1) agreements that considerably limit or get rid of competitors on a selected marketplace for items or providers and a pair of) abusive conduct of dominant undertakings.
Within the first class, it’s common to search out illicit price-fixing agreements, whether or not on a horizontal degree (i.e. between rivals) or on a vertical degree (i.e. between a producer and its distributors or between a wholesaler and retailers). Additionally it is frequent to search out agreements within the context of public bidding (‘bid rigging’). As an illustration, firms might agree to not take part in a sure bidding process, or outline a rotation system for his or her participation in such procedures, or agree on the costs and circumstances to be supplied.
Within the second class (abusive conduct of dominant undertakings), it’s not unusual to search out dominant undertakings that attempt to consolidate their dominant place by refusing to provide prospects, discriminating between buying and selling companions in relation to costs or different circumstances of commerce or attempting to impose unfair costs.
A cartel continuing sometimes begins with a ‘daybreak raid’ by the Swiss Competitors Fee (COMCO) on firms that will doubtlessly take part in an illegal settlement or are allegedly abusing their dominant place.
Which sectors are extra susceptible to falling foul of competitors regulation?
The COMCO locations explicit emphasis on key sectors, particularly those who have an effect on the infrastructure and primary providers of the Swiss financial system. It’s due to this fact frequent for proceedings to be opened within the sectors of building (particularly the highway building sector), finance, telecommunications and well being. Nonetheless, extra particular sectors – such because the French ebook market not too long ago – may additionally be investigated by the COMCO.
If an organization falls foul of antitrust or competitors regulation, what steps ought to they take?
If an organization finds – on account of an inside audit, for example – that it’s taking part in an settlement that’s prone to be thought-about illegal below antitrust regulation, it’s value contemplating whether or not it ought to provoke a so-called leniency programme by reporting the illegal conduct to the COMCO. A leniency programme might result in the avoidance of a monetary sanction or to a considerable discount thereof. Such a measure will likely be related if no proceedings have but been initiated by the COMCO or if an investigation process has simply began.
If an investigation has already been initiated and it’s too late to take part in a leniency programme or if the place of the COMCO is contested, the corporate should defend its place, particularly by making use of its procedural rights. In such a case, the lawyer’s position may also be to evaluate the authorized dangers and to succeed in, if vital, an amicable settlement with the COMCO as a way to settle the case and restrict the prices of the process.
From a preventive perspective, what may be executed to make sure firms don’t infringe on the present regulation?
Firms doubtlessly uncovered to antitrust dangers ought to implement a compliance and prevention programme. The start line of any compliance and prevention programme is the identification of the present antitrust dangers (danger evaluation). The dangers may be recognized both by the corporate’s inside compliance division or by an exterior lawyer.
Additionally it is vital to conduct common coaching programs at an early stage with the corporate’s employees as a way to develop a company tradition delicate to antitrust dangers. Explicit emphasis must be positioned on the workers who recurrently meet with rivals or who’ve any position within the firm’s pricing coverage.
Lastly, the programme must be monitored at common intervals and corrective measures taken if vital.
Firms doubtlessly uncovered to antitrust dangers ought to implement a compliance and prevention programme.
How has the extension of the management of abusive conduct to firms with relative market energy impacted the character of investigations and disputes in Swiss competitors regulation?
The brand new regulation on firms with relative market energy that got here into power on 1 January 2022 has led to some notifications to the COMCO. The influence of this new regulation will not be but clear and it’s too early to evaluate its effectiveness. Nonetheless, from a practitioner’s viewpoint, it seems that many firms which may be victims of abuse by suppliers with relative market energy are reluctant to complain to the COMCO, as this might jeopardise enterprise relationships that will have existed for a few years with their suppliers and are important for the businesses involved.
On this respect, it may be famous that the COMCO has simply opened an investigation in opposition to the French publishing group Madrigall. On this context, it can look at whether or not Madrigall is unlawfully limiting the likelihood for Swiss ebook retailers to purchase books in France at higher circumstances. This investigation might probably end in a primary main choice on the brand new provisions on relative market energy.
How can you help your purchasers with mergers which are investigated by the competitors fee on the grounds that the merger creates or strengthens a dominant place?
In such a scenario, my job will likely be to help the businesses to acquire merger clearance from the COMCO. In concrete phrases, this implies making ready a merger notification and accompanying the businesses involved by the notification process, representing them earlier than the COMCO. Ideally, when the timing of the merger permits it, it’s common follow to submit a pre-notification to the COMCO in order that the latter can assess whether or not the draft notification is full. This permits the COMCO to anticipate the formal notification and to gather the mandatory information in good time to evaluate the case. As our workplace is situated in Berne – just like the COMCO – this proximity is a bonus for the interplay with this authority.
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Dr Sébastien Gobat, Companion
Troller Hitz Troller
Münstergasse 38, CH-3011 Berne, Switzerland
Tel: +41 31 328 36 36
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Dr Sébastien Gobat is a accomplice at Troller Hitz Troller in Berne, Switzerland. He’s specialised in antitrust, unfair competitors and the assorted areas of mental property regulation. He additionally has confirmed experience in distribution regulation (company, license and franchising agreements) and insolvency regulation. He recurrently advises firms within the area of antitrust regulation and represents them earlier than the Swiss Competitors Fee (COMCO) within the context of investigations or merger notifications.
Troller Hitz Troller is a famend Swiss regulation agency. Established in 1941 with places of work in Berne and Lucerne, it gives providers within the fields of mental property (trademark, patent, design and copyright regulation), antitrust and unfair competitors regulation, in addition to contract and enterprise regulation.
