Private antitrust enforcement in Switzerland
There is a wide range of remedies under Swiss competition law for business litigants. Inventive remedies include compelled access to what American antitrust lawyers would call an “essential facility.” But recent proposed legislation that would have provided consumers with standing to enforce Switzerland’s competition laws has been rejected, and private enforcement remains in the hands of corporate litigants.
Private antitrust actions in Switzerland are governed by Articles 12-17 of the Cartels and Other Restraints of Competition Act dated Federal Law of October 6, 1995 (“Cartel Act”). Article 12 of the Cartel Act governs the remedies that are available to a claimant, including the elimination of or desistance from the hindrance, damages and satisfaction or the surrender of unlawfully earned profits. Article 13 prescribes the enforcement of the right to elimination and desistance and Article 15 sets forth the procedure for the civil courts to refer questions on the lawfulness of a restraint of competition to the Competition Commission.
The Swiss International Private Law Act of December 18, 1987 (SIPLA) governs international private antitrust actions. Article 137, paragraph 1, of the SIPLA provides that the applicable law shall be the law of the state in whose market the direct effect of the restraint of competition on the claimant occur.
On February 22, 2012, the Swiss Federal Council submitted to Parliament its draft for a number of amendments of the Cartel Act for approval. The proposals submitted to Parliament for consideration included the recognition of legal standing to final consumers and the suspension of the statute of limitations for civil actions during an investigation of an alleged anticompetitive practice by competition authorities. On September 17, 2014, the Parliament rejected the proposed revisions to the Cartel Act in their entirety.
In Switzerland, private actions are available in cartel cases (horizontal and vertical infringement of competition) and cases of an abuse of a dominant position. Swiss law does not provide for private actions in merger or control cases.
A claimant may bring an action before the civil court under the Cartel Act, as long as he or she is affected by the restraint, regardless of whether the restriction is directly aimed at the claimant or not. Undertakings – all consumers or suppliers of goods or services active in commerce regardless of their legal or organisational form (Article 2 Cartel Act) – which encounter a restriction of competition have legal standing to bring a claim under the Cartel Act, irrespective of whether they are competitors, purchasers, suppliers or enterprises which operate in neighbouring markets. Final consumers, however, do not currently have standing to bring a private claim under the Cartel Act.
Statute of limitations
According to tort law, a private antitrust action for damages or for remittance of profits becomes time-barred one year after the injured party has learned of the damage and, in any event, 10 years after the date on which the claim first arose. If the restraint of competition continues without interruption for a period of time, the limitation period runs from the moment the restraint of competition is abandoned.
A claimant may request injunctive or declaratory relief and/or the elimination of or desistance from the hindrance of competition. In addition, a claimant may seek either damages or the remittance of unlawfully earned profits (Article 12 Cartel Act). Civil courts can award damages in the amount of the actual loss incurred by the claimant and caused by the tortfeasor, including both property loss and lost profits. The damages’ analysis consists of the difference between the actual net position on assets and liabilities of the injured party at the time of judgment and the hypothetical net position on assets and liabilities at the time of the judgment, assuming that no restraint of competition occurred. The claimant bears the burden of proof; it must be demonstrated that it incurred damages as a result of an unlawful restraint of competition attributable to the tortfeasor. Negligence by the tortfeasor is sufficient for this purpose. Article 137 of the SIPLA provides that if a claim for damages is based on foreign antitrust law, no award may be rendered by a Swiss court in excess of what would be available under Swiss law.
Swiss Cheese Case “Etivaz”
The Swiss civil courts have recently considered whether the refusal to provide access to a defendant’s storage facilities could constitute an abuse of dominant position in a case related to IP rights. Specifically, a producer of a type of Swiss cheese (called Etivaz), which is subject to an AOP regulation (appellation of protected indication of origin), requested access to certain caverns of the defendant (IP holder) in order to stock his cheese during its ripening process. The Cantonal Court in Vaud confirmed in its decision the view of the Secretariat of the Competition Commission, ruling that the defendant’s refusal to provide storage space in its caverns was not abusive pursuant to the Cartel Act. However, the Swiss Federal Court overruled the lower courts in its decision on May 23, 2013 (case 4A_449/2012) and held that the refusal to provide access to the defendant’s caverns was based on unjustified reasons and, thus, constitutes an abuse of a dominant position. The defendant was forced to provide storage space in its caverns and was compelled to pay damages.