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English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force.
Federal Act on Cartels and other Restraints of Competition
(Cartel Act, CartA)
of 6 October 1995 (Status as of 1 May 2013)
The Federal Assembly of the Swiss Confederation
based on Articles 27 paragraph 1, 961, 97 paragraph 2 and 1222 of the Federal Con- stitution3,4 in implementation of the competition law provisions contained in international agreements, and having considered the Federal Council Dispatch of 23 November 19945, decrees:
Chapter 1: General Provisions
Art. 1 Purpose The purpose of this Act is to prevent the harmful economic or social effects of cartels and other restraints of competition and, by doing so, to promote competition in the interests of a liberal market economy.
Art. 2 Scope 1 This Act applies to private or public undertakings that are parties to cartels or to other agreements affecting competition, that exercise market power or that partici- pate in concentrations of undertakings.
AS 1996 546 1 This provision corresponds to Art. 31bis of the Federal Constitution of 29 May 1874
[BS 1 3]. 2 This provision corresponds to Art. 64 of the Federal Constitution of 29 May 1874
[BS 1 3]. 3 SR 101 4 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004
(AS 2004 1385 1390; BBl 2002 2022 5506). 5 BBl 1995 I 468
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1bis Undertakings are all consumers or suppliers of goods or services active in com- merce regardless of their legal or organisational form.6 2 This Act applies to practices that have an effect in Switzerland, even if they origi- nate in another country.
Art. 3 Relationship to other statutory provisions 1 Statutory provisions that do not allow for competition in a market for certain goods or services take precedence over the provisions of this Act. Such statutory provisions include in particular:
a. provisions that establish an official market or price system; and b. provisions that grant special rights to specific undertakings to enable them to
fulfil public duties. 2 This Act does not apply to effects on competition that result exclusively from the legislation governing intellectual property. However, import restrictions based on intellectual property rights shall be assessed under this Act.7 3 The procedures to assess restraints of competition under this Act shall take prece- dence over procedures under the Price Supervision Act of 20 December 19858 unless the Competition Commission and the Price Supervisor jointly decide other- wise.
Art. 4 Definitions 1 Agreements affecting competition are binding or non-binding agreements and concerted practices between undertakings operating at the same or at different levels of production which have a restraint of competition as their object or effect. 2 Dominant undertakings are one or more undertakings in a specific market that are able, as suppliers or consumers, to behave to an appreciable extent independently of the other participants (competitors, suppliers or consumers) in the market. 9 3 Concentration of undertakings are:
a. the merger of two or more previously independent undertakings; b. any transaction, in particular the acquisition of an equity interest or the con-
clusion of an agreement, by which one or more undertakings acquire direct or indirect control of one or more previously independent undertakings or parts thereof.
6 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
7 Sentence inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
8 SR 942.20 9 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004
(AS 2004 1385 1390; BBl 2002 2022 5506).
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Chapter 2: Substantive Provisions
Section 1: Unlawful Restraints of Competition
Art. 5 Unlawful agreements affecting competition 1 Agreements that significantly restrict competition in a market for specific goods or services and are not justified on grounds of economic efficiency, and all agreements that eliminate effective competition are unlawful. 2 Agreements affecting competition are deemed to be justified on grounds of eco- nomic efficiency if:
a. they are necessary in order to reduce production or distribution costs, im- prove products or production processes, promote research into or dissemina- tion of technical or professional know-how, or exploit resources more ra- tionally; and
b. they will under no circumstances enable the parties involved to eliminate ef- fective competition.
3 The following agreements between actual or potential competitors are presumed to lead to the elimination of effective competition:
a. agreements to directly or indirectly fix prices; b. agreements to limit the quantities of goods or services to be produced, pur-
chased or supplied; c. agreements to allocate markets geographically or according to trading part-
ners. 4 The elimination of effective competition is also presumed in the case of agree- ments between undertakings at different levels of the production and distribution chain regarding fixed or minimum prices, and in the case of agreements contained in distribution contracts regarding the allocation of territories to the extent that sales by other distributors into these territories are not permitted.10
Art. 6 Categories of agreements affecting competition that are deemed justified
1 The conditions under which agreements affecting competition are as a general rule deemed justified on grounds of economic efficiency may be set out in ordinances or general notices. In doing so the following agreements will be taken into considera- tion in particular:
a. co-operation agreements relating to research and development; b. specialisation and rationalisation agreements, including agreements concern-
ing the use of tools for calculating costs;
10 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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c. agreements granting exclusive rights to purchase or sell certain goods or ser- vices;
d. agreements granting exclusive licences for intellectual property rights; e.11 agreements that have the purpose of improving the competitiveness of small
and medium-sized undertakings, provided their effect on the market is lim- ited.
2 Such ordinances and general notices may also recognise particular forms of co- operation specific to certain sectors of the economy as being generally justified, in particular agreements concerning the effective implementation of public law provi- sions on the protection of customers or investors in the field of financial services. 3 General notices are published by the Competition Commission in the Federal Gazette. Ordinances within the meaning of paragraphs. 1 and 2 above shall be issued by the Federal Council.
Art. 7 Unlawful practices by dominant undertakings 1 Dominant undertakings behave unlawfully if they, by abusing their position in the market, hinder other undertakings from starting or continuing to compete, or disad- vantage trading partners. 2 The following behaviour is in particular considered unlawful:
a. any refusal to deal (e.g. refusal to supply or to purchase goods); b. any discrimination between trading partners in relation to prices or other
conditions of trade; c. any imposition of unfair prices or other unfair conditions of trade; d. any under-cutting of prices or other conditions directed against a specific
competitor; e. any limitation of production, supply or technical development; f. any conclusion of contracts on the condition that the other contracting party
agrees to accept or deliver additional goods or services.
Art. 8 Exceptional authorisation for compelling public interest reasons Agreements affecting competition and behaviour by dominant undertakings that have been declared unlawful by the competent authority may be authorised by the Federal Council at the request of the undertakings involved if, in exceptional cases, they are necessary for compelling public interest reasons.
11 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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Section 2: Concentrations of Undertakings
Art. 9 Notification of planned concentrations 1 Planned concentrations of undertakings must be notified to the Competition Com- mission before their implementation if in the financial year preceding the concentra- tion:
a. the undertakings concerned together reported a turnover of at least 2 billion Swiss francs, or a turnover in Switzerland of at least 500 million Swiss francs, and
b. at least two of the undertakings concerned each reported a turnover in Swit- zerland of at least 100 million Swiss francs.
2 …12 3 In the case of insurance companies, “turnover” is replaced by “annual gross insur- ance premium income”, and in the case of banks and other financial intermediaries that are subject to the accounting regulations set out in the Banking Act of 8 No- vember 193413 by “gross income”.14 4 Notwithstanding anything set out in paragraphs 1 to 3 above, notification is manda- tory if one of the undertakings concerned has in proceedings under this Act in a final and non-appealable decision been held to be dominant in a market in Switzerland, and if the concentration concerns either that market or an adjacent market or a market upstream or downstream thereof. 5 The Federal Assembly may by general federal decree not subject to a referendum:
a. adjust the amounts set forth in paragraphs 1 to 3 above, taking account of any change in circumstances;
b. establish special criteria for the notification of concentrations in certain sec- tors of the economy.
Art. 10 Assessment of concentrations 1 Concentrations that have to be notified shall be investigated by the Competition Commission if a preliminary assessment (Art. 32 para. 1) reveals that they create or strengthen a dominant position. 2 The Competition Commission may prohibit a concentration or authorise it subject to conditions and obligations if the investigation indicates that the concentration:
a. creates or strengthens a dominant position liable to eliminate effective com- petition; and
12 Repealed by No I of the Federal Act of 20 June 2003, with effect from 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
13 SR 952.0 14 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004
(AS 2004 1385 1390; BBl 2002 2022 5506).
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b. does not improve the conditions of competition in another market such that the harmful effects of the dominant position can be outweighed.
3 If a concentration of banks within the meaning of the Banking Act15 is deemed necessary by the Swiss Financial Market Supervisory Authority (FINMA) for rea- sons related to creditor protection, the interests of creditors may be given priority. In these cases, FINMA takes the place of the Competition Commission, which it shall invite to submit an opinion.16 4 In assessing the effects of a concentration on the effectiveness of competition, the Competition Commission also takes account of any market developments and the position of the undertakings in relation to international competition.
Art. 11 Exceptional authorisation for compelling public reasons A concentration of undertakings that has been prohibited in accordance with Article 10 may be authorised by the Federal Council at the request of the undertakings involved if, in exceptional cases, it is necessary for compelling public interest rea- sons.
Chapter 3: Civil Procedure
Art. 12 Rights arising from a hindrance of competition 1 A person hindered by an unlawful restraint of competition from entering or com- peting in a market is entitled to request:
a. the elimination of or desistance from the hindrance; b. damages and satisfaction in accordance with the Code of Obligations17; c. surrender of unlawfully earned profits in accordance with the provisions on
agency without authority. 2 Hindrances of competition include in particular the refusal to deal and discrimina- tory measures. 3 The rights set out in paragraph 1 above are also accorded to persons who are hin- dered by a lawful restraint of competition more than is necessary for the implemen- tation of that restraint.
Art. 13 Enforcement of the right to elimination and desistance In order to enforce the right to elimination and desistance, the courts may, at the plaintiff's request, rule that:
a. any contracts are null and void in whole or in part;
SR 952.0 forc since 1 Ja . 2007 (SR 173.32).
615 entence Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in 16 Ameended by Annex No 8 of the Financial Market Supervision Act of 22 June 2007, in
Am nded by A nex No 27 of the Administrative Court Act of 17 June 2005, in force26 forcee since 1 Jan . 2009 (SR 956.1). 17 since 1 Jan. 2007 (SR 173.32).SR 220
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b. the person responsible for the hindrance of competition must conclude con- tracts with the person so hindered on terms that are in line with the market or the industry standard.
Art. 1418
Art. 15 Assessment of the legality of a restraint of competition 1 If the legality of a restraint of competition is questioned in the course of civil proceedings, the case shall be referred to the Competition Commission for an expert report. 2 If a restraint of competition that is as such unlawful is claimed to be necessary for compelling public interest reasons, the matter shall be decided by the Federal Coun- cil.
Art. 16 and Art. 1719
Chapter 4: Administrative Procedure
Section 1: Competition Authorities
Art. 18 Competition Commission 1 The Federal Council appoints the Competition Commission and designates the members of the presiding body.20 2 The Competition Commission comprises between eleven and fifteen members, the majority of whom are independent experts. 2bis The members of the Competition Commission disclose their interests in a register of interests. 21 3 The Competition Commission takes the decisions and issues the rulings that are not expressly reserved to another authority. It submits recommendations (Art. 45, para. 2) and opinions (Art. 46 para. 2) to the political authorities and prepares expert reports (Art. 47 para. 1).
18 Repealed by Annex 1 No II 16 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
19 Repealed by Annex 1 No II 16 of the Civil Procedure Code of 19 Dec. 2008, with effect from 1 Jan. 2011 (AS 2010 1739; BBl 2006 7221).
20 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
21 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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Art. 19 Organisation 1 The Competition Commission is independent of the administrative authorities. It may organise itself into chambers, each with independent decision-making powers. It may, in individual cases, authorise a member of the presiding body to settle any urgent business or matters of minor importance. 2 Administratively the Competition Commission is part of the Federal Department of Economic Affairs, Education and Research22 (EAER).
Art. 20 Internal rules of procedure 1 The Competition Commission issues internal rules of procedure, primarily setting out the details of its organisation, and in particular the responsibilities of its presid- ing body, each chamber and the Competition Commission as a whole. 2 The internal rules of procedure are subject to approval by the Federal Council.
Art. 21 Decisions 1 The Competition Commission and the chambers are quorate if at least half the members, but in no case fewer than three members, are present. 2 Decisions are taken by a simple majority of the members present; in the event of a tie, the president shall have the casting vote.
Art. 22 Recusal of members of the Competition Commission 1 Members of the Competition Commission must recuse themselves if there are grounds for recusal under Article 10 of the Administrative Procedure Act of 20 December 196823. 2 As a general rule, the fact that a member of the Commission represents an umbrella organisation does not constitute a personal interest or any other ground for recusal. 3 If recusal is disputed, the Competition Commission or the relevant chamber shall decide in the absence of the member concerned.
Art. 23 Duties of the Secretariat 1 The Secretariat prepares the Competition Commission's business, conducts any investigations and, together with a member of the presiding body, issues any neces- sary procedural rulings. It proposes motions to the Competition Commission and implement the latter's decisions. It deals with the parties involved, third parties and any authorities directly. 2 The Secretariat provides opinions (Art. 46 para. 1) and advises governmental offices and undertakings on matters relating to this Act.
8 S ntenceTeerm in accordance with No I 6o f the Ordinance of 15 June 2012 (Reorganisation of theAmended by Annex N22 27 of the Administrative Court Act of 17 June 2005, in force since 1 Ja . 2007 (SR 173.32).Departments), in force since 1 Jan. 2013 (AS 2012 3655). This amendment has been Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in force26 made throughout the text.
23 since 1 Jan. 2007 (SR 173.32).SR 172.021
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Art. 24 Secretariat's staff 1 The Federal Council appoints the executive management of the Secretariat and the Competition Commission appoints the remainder of the Secretariat's staff. 2 The terms and conditions of employment are governed by the legislation applicable to federal government employees.
Art. 25 Official and business secrets 1 The competition authorities are bound by the rules on official secrecy. 2 They use information obtained in the performance of their duties only for the purpose for which it was obtained or for the purpose of the investigation. 3 The competition authorities may provide the Price Supervisor with any information required for the accomplishment of the latter's duties. 4 The competition authorities' publications may not reveal any business secrets.
Section 2: Investigation of Restraints of Competition
Art. 26 Preliminary investigation 1 The Secretariat may conduct preliminary investigations ex officio, at the request of undertakings involved or in response to a complaint from third parties. 2 The Secretariat may propose measures to eliminate or prevent restraints of compe- tition. 3 During the preliminary investigation procedure, there is no right to inspect the files.
Art. 27 Opening an investigation 1 If there are indications of an unlawful restraint of competition, the Secretariat shall, in consultation with a member of the presiding body, open an investigation. It shall in any event open an investigation whenever asked to do so by the Competition Commission or by the EAER.24 2 The Competition Commission determines the order of priority with which the investigations that have been opened are dealt with.
Art. 28 Publication 1 The Secretariat gives notice of the opening of an investigation by way of official publication.
24 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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2 The notice states the purpose of and the parties to the investigation. It further contains an invitation to third parties to come forward within 30 days if they wish to participate in the investigation. 3 Failure to give notice does not prevent any investigative measures.
Art. 29 Amicable settlement 1 If the Secretariat considers that a restraint of competition is unlawful, it may pro- pose an amicable settlement to the undertakings involved concerning ways to elimi- nate the restraint. 2 The amicable settlement is formulated in writing and approved by the Competition Commission.
Art. 30 Decision 1 In response to a motion from the Secretariat, the Competition Commission decides on the appropriate measures or on the approval of the amicable settlement in a ruling. 2 The parties involved in the investigation may comment on the Secretariat's pro- posed motion in writing. The Competition Commission may decide to conduct hearings and instruct the Secretariat to carry out additional investigative measures. 3 If a significant change in the legal or factual circumstances has occurred, the Com- petition Commission may, in response to a motion proposed by the Secretariat or at the request of the parties involved, revoke or amend its decision.
Art. 31 Exceptional authorisation 1 If the Competition Commission has decided that a restraint of competition is unlawful, the parties involved may, within 30 days, submit to the EAER an applica- tion for exceptional authorisation from the Federal Council for compelling public interest reasons. If such an application is submitted, the period in which an appeal may be filed with the Federal Administrative Court begins to run only after notifica- tion of the parties of the Federal Council's decision.25 2 Applications for exceptional authorisation by the Federal Council may also be submitted within 30 days of the entry into effect of a judgment of the Federal Ad- ministrative Court or the Federal Supreme Court. 26 3 The authorisation is of limited duration and may be subject to conditions and obligations. 4 The Federal Council may on request extend an authorisation if the conditions for granting it continue to be met.
25 Sentence Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in force since 1 Jan. 2007 (SR 173.32).
26 Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in force since 1 Jan. 2007 (SR 173.32).
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Section 3: Review of Concentrations of Undertakings
Art. 32 Opening an investigation 1 On receiving a notification of a planned concentration of undertakings (Art. 9), the Competition Commission decides if there are grounds for conducting an investiga- tion. The Competition Commission notifies the undertakings concerned of the opening of an investigation within one month of receiving the notification. If no such notice is given within that time period, the concentration may be implemented without reservation. 2 The undertakings concerned must refrain from implementing the concentration for one month following the notification unless the Competition Commission has at their request authorised them to do so for good cause.
Art. 33 Investigation procedure 1 If the Competition Commission decides to conduct an investigation, the Secretariat publishes the principal terms of the notification of the concentration and states the time frame within which third parties may comment on the notified concentration. 2 At the outset of the investigation the Competition Commission decides whether the concentration may exceptionally be implemented provisionally or whether it should remain suspended. 3 The Competition Commission shall complete its investigation within four months unless prevented from doing so for reasons attributable to the undertakings con- cerned.
Art. 34 Legal effect The legal effect of a concentration that has to be notified is suspended, subject to the expiry of the deadline set out in Article 32 paragraph 1 and any provisional authori- sation to implement the concentration. If the Competition Commission does not take a decision before the expiry of the deadline set out in Article 33 paragraph 3, the concentration is deemed authorised, unless the Competition Commission asserts by way of ruling that it has been prevented from conducting the investigation for rea- sons attributable to the undertakings concerned.
Art. 35 Failure to comply with the notification requirement If a concentration that should have been notified has been implemented without due notification, the procedure set out in Articles 32 to 38 is initiated ex officio. In this case, the time period set out in Article 32 paragraph 1 begins to run as soon as the authority possesses all the information that would have to be provided in a notifica- tion of a concentration.
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Art. 36 Exceptional authorisation procedure 1 If the Competition Commission has prohibited a concentration, the undertakings concerned may, within 30 days, submit to the EAER an application for exceptional authorisation by the Federal Council for compelling public interest reasons. If such an application is submitted, the period in which an appeal may be filed with the Federal Administrative Court begins to run only after the parties have been notified of the Federal Council's decision. 27 2 Applications for exceptional authorisation by the Federal Council may also be submitted within 30 days of the entry into effect of a judgment of the Federal Ad- ministrative Court or the Federal Supreme Court. 28 3 If possible, the Federal Council takes its decision within four months of receipt of the application.
Art. 37 Restoration of effective competition 1 If a prohibited concentration has been implemented or if a concentration is prohib- ited after its implementation and exceptional authorisation for the concentration has not been requested or granted, the undertakings concerned are required to take the necessary steps to restore effective competition. 2 The Competition Commission may require the undertakings concerned to make binding proposals as to how effective competition may be restored. It shall set them a deadline within which to do so. 3 If the Competition Commission accepts the proposed measures, it may decide how and by when the undertakings concerned must implement them. 4 If the undertakings concerned do not make any proposals despite being required to do so by the Competition Commission, or if the proposals are not accepted by the Competition Commission, the Competition Commission may order the following measures by way of a ruling:
a. the separation of any combined undertakings or assets; b. the cessation of the controlling influence; c. other measures to restore effective competition.
Art. 38 Revocation and revision 1 The Competition Commission may revoke an authorisation or decide to investigate a concentration despite the expiry of the deadline set out in Article 32 paragraph 1 if:
a. the undertakings concerned have provided inaccurate information; b. the authorisation was obtained fraudulently; or
27 Sentence Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in force since 1 Jan. 2007 (SR 173.32).
28 Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in force since 1 Jan. 2007 (SR 173.32).
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c. the undertakings concerned are in serious breach of a condition attached to the authorisation.
2 The Federal Council may revoke an exceptional authorisation on the same grounds.
Section 4: Procedure and Rights of Appeal
Art. 39 Principle The Administrative Procedure Act of 20 December 196829 applies to all procedures under this Act unless this Act stipulates otherwise.
Art. 40 Duty to provide information Parties to agreements, undertakings with market power, undertakings concerned in concentrations and affected third parties shall provide the competition authorities with all the information required for their investigations and produce the necessary documents. The right to refuse to provide information is governed by Articles 16 and 17of the Administrative Procedure Act of 20 December 196830.31
Art. 41 Administrative assistance Federal and cantonal government offices are required to co-operate with the compe- tition authorities in their enquiries and to make any necessary documents available to them.
Art. 4232 Investigative measures 1 The competition authorities may hear third parties as witnesses and require the parties to an investigation to give evidence. Article 64 of the Federal Act of 4 De- cember 194733 on Federal Civil Procedure applies by analogy. 2 The competition authorities may order searches and seize any evidence. Articles 45-50 of the Federal Act of 22 March 197434 on Administrative Criminal Law apply by analogy to these coercive measures. Searches and seizures are ordered by a member of the presiding body in response to a motion from the Secretariat.
29 SR 172.021 30 SR 172.021 31 Second sentence amended by No I 3 of the Federal Act of 28 Sept. 2012 on the Amend-
ment of Procedural Provisions on Lawyers' Professional Secrecy, in force since 1 May 2013 (AS 2013 847; BBl 2011 8181).
32 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
33 SR 273 34 SR 313.0
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Art. 42a35 Investigations in proceedings under the Swiss/EC Air Transport Agreement
1 The Competition Commission is the Swiss authority responsible for co-operation with the institutions of the European Community under Article 11 of the Agreement between the European Community and the Swiss Confederation of 21 June 199936 on Air Transport. 2 If an undertaking opposes a review in proceedings under Article 11 of the Agree- ment, investigative measures pursuant to Article 42 may be undertaken at the request of the European Commission. Article 44 applies.
Art. 43 Participation of third parties in the investigation 1 The following may come forward in order to take part in an investigation concern- ing a restraint of competition:
a. persons who as a result of a restraint of competition are hindered from start- ing or continuing to compete;
b. professional or trade associations whose bylaws authorise them to safeguard their members' economic interests, provided members of the association or of one of its sections may also take part in the investigation;
c. organisations of national or regional importance whose work is dedicated to consumer protection under the terms of their bylaws.
2 The Secretariat may require in a procedure that groups of more than five partici- pants who have identical interests appoint a common representative if otherwise the investigation would be unduly complicated. It may in any event limit participation to a hearing only; the rights of parties under the Administrative Procedure Act of 20 December 196837 are reserved. 3 Paragraphs 1 and 2 above apply by analogy to the procedure for granting an excep- tional authorisation for an unlawful restraint of competition by the Federal Council (Art. 8). 4 In proceedings for the review of concentrations of undertakings, only the undertak- ings concerned have the rights of parties.
Art. 4438
35 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
36 SR 0.748.127.192.68 37 SR 172.021 38 Repealed by Annex No 27 of the Administrative Court Act of 17 June 2005, with effect
from 1. Jan. 2007 (SR 173.32).
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Section 5: Other Duties and Powers of the Competition Authorities
Art. 45 Recommendations to authorities 1 The Competition Commission shall constantly monitor the status of competition. 2 The Competition Commission may submit to the authorities recommendations on how to promote effective competition, especially with regard to the creation and implementation of regulations relating to commercial matters.
Art. 46 Opinions 1 Federal bills relating to commercial matters that are likely to influence competition shall be submitted to the Secretariat. It determines whether such legislation may cause distortions or undue restraints of competition. 2 The Competition Commission shall in a consultation procedure provide its opinion on federal bills that restrain or otherwise influence competition. It may submit its opinion on cantonal bills.
Art. 47 Expert reports 1 The Competition Commission shall provide other authorities with expert reports on competition law issues of general importance. It may instruct the Secretariat to carry out this task in less important matters. 2 …39
Art. 48 Publication of decisions and judgments 1 The competition authorities may publish their decisions. 2 The courts shall, without being asked to do so, furnish the Secretariat with com- plete copies of any judgments they may render in the application of this Act. The Secretariat shall collect these judgments and may publish them periodically.
Art. 49 Duty to provide information 1 The Secretariat and the Competition Commission shall inform the public of their activities. 2 The Competition Commission shall submit an annual report to the Federal Council.
39 Repealed by No I of the Federal Act of 20 June 2003, with effect from 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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Section 6: Administrative Sanctions40
Art. 49a41 Sanction for unlawful restraints of competition 1 Any undertaking that participates in an unlawful agreement pursuant to Article 5 paragraphs 3 and 4 or that behaves unlawfully pursuant to Article 7 shall be charged up to 10 per cent of the turnover that it achieved in Switzerland in the preceding three financial years. Article 9 paragraph 3 applies by analogy. The amount is de- pendent on the duration and severity of the unlawful behaviour. Due account shall be taken of the likely profit that resulted from the unlawful behaviour. 2 If the undertaking assists in the discovery and elimination of the restraint of com- petition, a charge may be waived in whole or in part. 3 The charge is waived if:
a. the undertaking submits notification of the restraint of competition before it takes effect. If the undertaking is informed of the opening of a procedure under Articles 26-30 within five months of submitting its notification but continues to implement the restraint of competition, the charge is not waived;
b. the restraint of competition has not been exercised for more than five years by the time an investigation is opened;
c. the Federal Council has authorised a restraint of competition under Article 8.
Art. 5042 Breaches of amicable settlements and administrative decisions Any undertaking that to its advantage breaches an amicable settlement, a final and non-appealable ruling of the competition authorities, or a decision of an appellate body shall be charged up to 10 per cent of the turnover it achieved in Switzerland in the preceding three financial years. Article 9 paragraph 3 applies by analogy. In assessing the amount, due account shall be taken of the likely profit that resulted from the unlawful behaviour.
Art. 51 Breaches in the context of concentrations of undertakings 1 Any undertaking that implements a concentration that should have been notified without filing a notification, fails to observe the suspension obligation, fails to comply with a condition attached to the authorisation, implements a prohibited concentration, or fails to implement a measure intended to restore effective competi- tion shall be charged up to one million Swiss francs. 2 In case of repeated failure to comply with a condition attached to the authorisation, the undertaking shall be charged up to 10 per cent of the total turnover in Switzer-
40 Originally before Art. 50. 41 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004
(AS 2004 1385 1390; BBl 2002 2022 5506). See also the Final Provisions at the end of this Act.
42 Amended by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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land achieved by all the undertakings concerned. Article 9 paragraph 3 applies by analogy.
Art. 52 Other breaches Any undertaking that does not, or does not fully fulfil its obligation to provide information or produce documents shall be charged up to 100 000 Swiss francs.
Art. 53 Procedure43 1 Breaches are investigated by the Secretariat in consultation with a member of the presiding body. They are judged by the Competition Commission. 2 …44
Section 7: 45 Fees
Art. 53a 1 The competition authorities chargea fees for:
a. rulings relating to the investigation of restraints of competition pursuant to Articles 26-31;
b. reviews of concentrations of undertakings pursuant to Articles 32-38; c. expert reports and other services.
2 The fee is determined by the time spent on the work. 3 The Federal Council determines the fee rates and regulates the imposition of fees. It may provide that no fees be charged for certain procedures or services, in particu- lar where procedures are discontinued.
Chapter 5: Criminal Sanctions
Art. 54 Violations of amicable settlements and administrative orders Any person who wilfully violates an amicable settlement, a final and non-appealable ruling of the competition authorities or a decision of an appellate body is liable to a fine not exceeding 100,000 Swiss francs.
43 Amended by Annex No 27 of the Administrative Court Act of 17 June 2005, in force since 1 Jan. 2007 (SR 173.32).
44 Repealed by Annex No 27 of the Administrative Court Act of 17 June 2005, with effect from 1 Jan. 2007 (SR 173.32).
45 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
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Art. 55 Other violations Any person who wilfully does not, or does not fully comply with a ruling of the competition authorities concerning the obligation to provide information (Art. 40), who implements a concentration that should have been notified without filing a notification, or who violates rulings relating to concentrations of undertakings is liable to a fine not exceeding 20'000 Swiss francs.
Art. 56 Limitation period 1 The power to prosecute violations of amicable settlements and administrative orders (Art. 54) is subject to a limitation period of five years. No suspension can extend the limitation period by more than half of its original duration. 2 The power to prosecute other offences (Art. 55) is subject to a limitation period of two years.
Art. 57 Procedure and legal remedies 1 The prosecution and adjudication of criminal offences is governed by the Federal Act of 22 March 197446 on Administrative Criminal Law. 2 The prosecuting authority is the Secretariat in consultation with a member of the presiding body. The decision-making authority is the Competition Commission.
Chapter 6: Implementation of International Agreements
Art. 58 Ascertainment of the facts 1 If a party to an international agreement asserts that a restraint of competition is incompatible with that agreement, the EAER may instruct the Secretariat to conduct a preliminary investigation. 2 In response to a motion proposed by the Secretariat, the EAER decides what, if any, further action to take; before that, it shall hear the parties involved.
Art. 59 Elimination of incompatibilities 1 If in implementing an international agreement, it is found that a restraint of compe- tition is incompatible with that agreement, the EAER may in consultation with the Federal Department of Foreign Affairs propose an amicable settlement to the parties involved so as to eliminate the incompatibility. 2 If an amicable settlement cannot be reached in time and one party to the agreement threatens to take protective measures against Switzerland, the EAER may in consul- tation with the Federal Department of Foreign Affairs determine the measures nec- essary to eliminate the restraint of competition in a ruling.
46 SR 313.0
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Chapter 6a:47 Evaluation
Art. 59a 1 The Federal Council shall arrange for the evaluation of the effectiveness of the measures and the application of this Act. 2 After conclusion of the evaluation and at the latest five years after this provision has come into force, the Federal Council shall report to Parliament and submit proposals for further action.
Chapter 7: Final Provisions
Art. 60 Implementation The Federal Council issues the implementing provisions.
Art. 61 Repeal of current legislation The Cartel Act of 20 December 198548 is repealed.
Art. 62 Transitional provisions 1 Ongoing procedures before the Cartel Commission relating to agreements affecting competition shall be suspended on the commencement of this Act; if necessary, they shall be continued in accordance with the new law after the expiry of a period of six months. 2 New procedures before the Competition Commission relating to agreements affect- ing competition may at the earliest be started six months after the commencement of this Act, unless the potential addressees of a ruling have asked for an investigation to be conducted sooner. Preliminary investigations may be conducted at any time. 3 Final and non-appealable rulings and recommendations accepted in accordance with the Cartel Act of 20 December 198549, including matters relating to sanctions, shall continue to be governed by the previous law.
Art. 63 Referendum and commencement 1 This Act is subject to an optional referendum. 2 The Federal Council determines the commencement date.
47 Inserted by No I of the Federal Act of 20 June 2003, in force since 1 April 2004 (AS 2004 1385 1390; BBl 2002 2022 5506).
48 [AS 1986 874, 1992 288 Annex No 12] 49 [AS 1986 874, 1992 288 Annex No 12]
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251 Cartels
Final provision to the amendment of 20 June 200350
If an existing restraint of competition is reported or terminated within one year of Article 49a coming into force, any charge in accordance with that provision shall be waived.
Commencement date: Articles 18-25 on 1 February 199651 all other provisions on 1 July 199652
50 AS 2004 1385; BBl 2002 2022 5506 51 Federal Council Decree of 24 Jan. 1996 (AS 1996 562) 52 Ordinance of 17 June 1996 (AS 1996 1805)
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Carte!Aet 251
Annex
Amendment of Federai Acts
53 The arnendments may be consulted under AS 1996 546.
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