The Competition Commission (Comco), located in Berne, is the national competition authority of Switzerland, committed to enforcing the provisions of the Federal Act on Cartels and Other Restraints of Competition (Swiss Cartels Act (ACart)). The ACart focuses on:

• agreements between undertakings affecting competition;
• abuses of dominant positions; and
• merger control.

Generally, the ACart follows the respective EC provisions, but also takes into account the legal and economic conditions prevailing in Switzerland.

The Competition Commission
Comco, presided over by Vincent Martenet, consists of 12 members who are elected by the Federal Council. The majority of Comco members are independent experts. However, representatives of business associations and consumer organisations are also present in the commission.

Comco is supported by a full-time secretariat. The secretariat has more than 50 scientific collaborators who examine suspected competition law infringements and prepare the decisions for Comco. Furthermore, the secretariat is responsible for giving legal advice to undertakings and public administrative bodies, and monitors competition on different markets. The secretariat is divided into three services: product markets, services and infrastructure. Comco decides and issues decrees on proposals of the secretariat. Appeals against these decisions may be addressed to the Federal Administrative Court in Berne, whose judgments can be appealed to the Federal Supreme Court in Lausanne.

Reforms of the Swiss Cartels Act
In 1995, the ACart was totally revised. The subsequent revision in 2003 introduced new legal instruments such as a leniency programme, opposition proceeding and direct sanctions, as well as specifications with regard to dawn raids.

Based on an evaluation report dated 14 January 2009, the Federal Council recently invited the Federal Department of Economic Affairs (DFEA) to make concrete proposals on how to adapt the Federal Law on Cartels (LCart). The draft of the legal project was published for public consultation until the end of November 2010. The Swiss parliament now has to decide if the project will be adopted, amended or rejected.

The most important points of modification are the following:

• establishment of a new competition court;
• procedural changes in order to accelerate proceedings;
• analysis of vertical restraints on a case-by-case basis;
• simplification of the proceedings regarding merger control;
• creation of a legal basis with respect to international cooperation between competition authorities; and
• enhancement of the importance of civil proceeding for cartel victims.

Competition law enforcement
In 2010, numerous mergers were notified to Comco, many of which were parallel proceedings also notified to the European Commission. One of the most important cases was the merger between the second- and third-largest telecoms service providers in Switzerland, Sunrise and Orange, which was prohibited by Comco.

Comco treated several cases concerning alleged unlawful agreements and abuses of dominance in 2010. Among the cartel cases where fines were imposed two cases concerned the construction industry. With respect to abuses of dominance, the Comco sanctioned SIX for abusing its dominant position regarding the access to credit/debit card terminals.

The price inspector
In Switzerland, an independent price inspector is in charge of monitoring prices and safeguarding the interests of consumers in this respect. In specific cases the price inspector and Comco work together. Pursuant to article 3(3) ACart, procedures under the ACart take precedence over procedures set forth in the law on the monitoring of prices, except in the event of a decision to the contrary taken by mutual consent by the Competition Commission and the price inspector.

Prager Dreifuss Ltd