Client Alert: Major re-interpretation of Swiss competition law

Per se prohibition of price-fixing, quantity-limiting and market-allocating agreements regardless of their effect

On 21 April 2017, after almost 10 months, the Swiss Federal Supreme Court published reasons for its judgment of 28 June 2016 in the matter of Colgate-Palmolive Europa Sàrl (former Gaba International AG). With a majority of 3 to 2, the Federal Supreme Court rejected an appeal made against the judgment of the Swiss Federal Administrative Court and confirmed the Swiss Competition Commission’s (COMCO) 4.8 million Swiss Franc sanction against Gaba. COMCO imposed the sanction in November 2009 because Gaba had contractually obliged its Austrian licensee (Gebro) not to export certain products out of Austria. According to COMCO, the agreement significantly restricts competition in Switzerland. The Federal Supreme Court held that price-fixing, quantity-limiting and market-allocating agreements in the sense of art. 5 para. 3 and 4 Cartel Act are generally significant restrictions of competition within the meaning of art. 5 para. 1 Cartel Act, regardless of their effect.

This NKF Client Alert outlines the key points of the Federal Supreme Court’s judgment and its possible consequences.