The Swiss National Council has completed its deliberations on the partial revision of the Cartel Act (CartA), adopting several core elements of the reform. This marks a significant step toward modernizing Swiss competition law. The draft legislation now enters the conciliation process. The revised provisions are not expected to take effect before 2026.
<h3>1. Clarity on Key Points of the Revision</h3>
The following elements were broadly supported and have been adopted:
<ul>
<li>Modernization of merger control through the introduction of the SIEC test (significant impediment to effective competition), along with streamlined notification requirements.</li>
<li>Strengthening of private antitrust enforcement, particularly by expanding legal standing for civil claims.</li>
<li>Adjustments to procedural law, including a reinforcement of the ex officio investigation principle in administrative proceedings.</li>
</ul>
<h3>2. Key Issues Pending in the Conciliation Process</h3>
Several differences between the National Council and the Council of States remain to be resolved:
<ul>
<li>For hardcore restrictions of competition, the National Council supports a case-by-case effects-based assessment, relying on both qualitative indicators and quantitative elements.</li>
<li>The National Council rejects the Council of States’ proposed limitation of the presumption of price-fixing to minimum and fixed prices and maintains the current, broader wording.</li>
<li>The National Council further advocates for a similar effects-based test for abuse of dominance cases.</li>
</ul>
<h3>3. What This Means for Businesses</h3>
Companies operating in Switzerland should anticipate the following impacts:
<ul>
<li>Lower intervention thresholds in merger control, potentially resulting in more frequent in-depth (Phase II) reviews.</li>
<li>Stricter evidentiary standards for competition authorities, if the effects-based approach is adopted, when proving anticompetitive agreements or abuse of dominance.</li>
<li>Facilitated access to civil litigation, with lower hurdles for filing antitrust damages claims.</li>
</ul>

Cartel Act Revision: National Council Sets the Course

<h3>Background</h3>
As per 1 January 2022, the antitrust prohibition of abusive conduct has been extended to companies with relative market power: Not only dominance, but also relative market power must not be abused. A company is considered to have relative market power if another company does not have sufficient and reasonable alternative options and therefore is dependent on the former company. Companies with relative market power must in principle treat dependent companies equally with respect to prices, discounts as well as other terms and conditions. In addition, the possibility for dependent companies to purchase goods or services from outside of Switzerland at the local prices and conditions must not be restricted. The introduction of relative market power aims at the so-called &#8222;high-price island&#8220; Switzerland and is a result of the Fair-Price Initiative (see the <a href="https://homburger.ch/en/insights/fair-price-initiative-implemented-by-parliament" target="_blank" rel="noopener">Homburger Bulletin dated 17 March 2021</a>).
After the existence or abuse of relative market power has been rejected in earlier rulings by both the Swiss Competition Commission (COMCO) and the Cantonal Court of Basel-Landschaft (in a case under civil law), the COMCO has now, for the first time, found an abuse of relative market power and ordered measures.
<h3>Abuse of Relative Market Power Regarding French-language Books</h3>
Distribution of French-language books in France and Switzerland
French-language books are mainly marketed by publishing houses. Booksellers at the retail level generally purchase books directly from the publishing houses. There are a few regional wholesalers in France for smaller booksellers and to address gaps in the product range.
In France, publishers such as Madrigall are legally obliged to set fixed retail prices (book price fixing), on the basis of which they grant discounts to booksellers.
Since 2007, Swiss booksellers have no longer been subject to such fixed book prices and set their own retail prices. However, their purchase prices in Switzerland for French-language books are based on the retail prices set in France, which are adjusted by a surcharge (e.g. customs duties and exchange rate adjustments) and converted into recommended Swiss retail prices. From these prices, Swiss booksellers receive individual discounts from the publishing houses, which determine the final purchase price.
It is generally permitted for Swiss booksellers to purchase books directly in France and import them into Switzerland independently, as the Swiss bookseller Payot intended to do.
Market power of Madrigall
In order to determine whether a company has relative market power, the COMCO relies on the following criteria:
<ol>
<li>Dependency: Does the undertaking concerned have sufficient and reasonable alternative options? The COMCO examines this question in three steps:
<ol>
<li>Determination of the alternative options</li>
<li>Determination of the possible implications of alternative options</li>
<li>Assessment of the proportionality of the implications</li>
</ol>
</li>
<li>Lack of countervailing power of the dependent company: Is there an uneven distribution of power between the companies with regard to the business in question?</li>
<li>Gross negligence: Is the dependency due to the dependent company&#8217;s own misconduct?</li>
</ol>
Madrigall is one of the largest publishing groups in France, comprising approximately 15 publishing houses. The COMCO has concluded that Payot is dependent on Madrigall as a bookseller, as there are no sufficient and reasonable alternative options for Payot. Neither wholesalers in France and Switzerland nor the grey market can supply Payot with the required quantity of books under acceptable conditions. A complete withdrawal from Madrigall books would result in a considerable loss of sales and a notable reduction in the attractiveness of Payot as a generalist bookseller, given that Madrigall offers a highly renowned product catalogue.
With regard to the question of countervailing power, the COMCO found that there is a clear imbalance in the disadvantages that the two companies would face if the distribution relationship were to be terminated. While Madrigall has numerous distribution options in French-speaking Switzerland, Payot is completely dependent upon Madrigall. The question of gross negligence was deemed irrelevant, since generalist booksellers like Payot are effectively forced to offer Madrigall&#8217;s books. Furthermore, these books can only be obtained through Madrigall&#8217;s (exclusive) distribution system. Madrigall therefore has a relative market power over Payot as a bookseller in French-speaking Switzerland.
Abuse
It is not prohibited for an undertaking to have a relative market power. It is prohibited to abuse such relative market power.
The COMCO has determined that Madrigall has abused its relative market power in this case by demanding significantly higher purchase prices from Payot than from French booksellers. Madrigall sought to justify the higher purchase prices for Payot by arguing that additional costs were involved in direct delivery to Switzerland. However, according to the COMCO, Madrigall can only prove that a small part of these additional costs arise solely because Payot operates in Switzerland and not in France. These include higher labour costs in Switzerland and damages incurred from removing labels before returning books. According to the COMCO, the other costs claimed (e.g. conversion costs) do not justify a permanent increase in purchase prices. Consequently, there is an abuse of Madrigall&#8217;s relative market power.
Measures of the COMCO
The COMCO obliges Madrigall to offer Payot the same conditions as those granted to French booksellers in the event of direct delivery from France. However, Madrigall has the option of increasing the purchase price based on proven additional costs or adjusting the discount accordingly.
Should Madrigall infringe the imposed measures, the COMCO can open a new investigation and, if necessary, impose sanctions. However, the abuse of relative market power in itself, in contrast to the abuse of a dominant market position, does not result in any direct sanctions.
<h3>Previous Rulings on Relative Market Power</h3>
COMCO&#8217;s order of discontinuation of 24 June 2024 regarding Fresenius Kabi
On 24 June 2024, the COMCO closed its investigation into the international pharmaceutical company Fresenius Kabi. The subject of the investigation was the accusation of abuse of relative market power in that Fresenius Kabi prevented or refused Galexis AG from purchasing products (drink and tube feeding solutions) from abroad at more favorable conditions.
The COMCO dismissed the existence of relative market power due to a lack of dependency. It came to the conclusion that Galexis AG had sufficient and reasonable alternative options. However, even if Fresenius Kabi had relative market power, the COMCO considered that there would be no abuse of this power, since the conditions offered by suppliers abroad were at most only slightly better and Galexis AG would therefore not have been exploited.
Decision of the Cantonal Court of Basel-Landschaft of 13 December 2023
On 13 December 2023, the Cantonal Court of Basel-Landschaft ruled on precautionary measures requested by A. GmbH against B. GmbH, based in Germany, for abusing relative market power. A. GmbH had been the sole distributor of B. GmbH products in Switzerland for 27 years and in 2022 purchased approximately 90% of its total sales volume from B. GmbH. A. GmbH claimed that B. GmbH abused its relative market power by terminating the long-standing partner conditions with a notice period of only six months. This threatened the existence of A. Ltd. as it was unable to reorganize itself within this timeframe.
The Cantonal Court came to the conclusion that A. GmbH was not able to sufficiently demonstrate that it would suffer a disadvantage that could not be easily remedied as a result of the termination of the partner conditions. The alleged price increases and the risk of insolvency were not sufficiently substantiated. Furthermore, A. GmbH was unable to demonstrate the existence of a relationship of dependency between the two parties. The mere assertion of dependency, whether product-related or company-related, was insufficient. Even if a dependency had existed, it would have been the result of unsound business decisions on the part of A. GmbH. The latter should have taken measures in a timely manner to diversify its suppliers and to provide contractual safeguards.
<h3>Implications for Companies</h3>
The decision taken by the COMCO regarding French-language books has implications for companies operating internationally. They should review, on a case-by-case basis, the dependency of their respective Swiss contractual partners. In contrast to the assessment of market dominance, the determination of relative market power is not based on the characteristics of the company in question, but on the nature of the relationships with its individual contractual partners.
If there is relative market power, the company in question should take appropriate steps to prevent an abuse. For example, it should ensure that requests from Switzerland to be supplied abroad are not rejected. While price increases with reference to Switzerland are not excluded in principle, such increases must be convincingly justified with specific additional costs in view of the COMCO decision regarding French-language books.
In general, a company with relative market power must adapt its behavior to comply with the prohibition of abuse set forth in Article 7 of the Swiss Cartel Act. In particular, dependent companies must, in principle, be treated equally with regard to prices, discounts and other terms and conditions. In addition, companies with relative market power may be required to demonstrate that contract terminations or exclusivity agreements can be justified based on objective reasons.

Homburger Bulletin Fair Price Initiative

First Finding of Abuse of Relative Market Power

<h3>Background</h3>
In the event of suspected violations of the law or other irregularities, companies conduct internal investigations to determine and analyze the relevant facts. These internal investigations are often led by outside counsel. In parallel, criminal and regulatory authorities may conduct their own investigations into the same matters. To further their investigations, they may request documents and information prepared and collected in the course of the internal investigation, including investigation reports and supporting documents. In particular, financial institutions supervised by the Swiss Financial Market Supervisory Authority FINMA are subject to extensive disclosure and cooperation obligations. Consequently, findings of internal investigations are often voluntarily disclosed to FINMA. In turn, the prosecutors may try to obtain the findings of the internal investigation directly from the supervised financial institutions or, through administrative assistance, from FINMA.
In this context, the questions arise as to whether the findings of an internal investigation conducted by outside counsel and the collected supporting documents are protected by attorney-client privilege and whether privileged documents and information submitted to FINMA may be obtained by the prosecutors. In two recent cases, the Swiss Federal Supreme Court ruled on those issues (see <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_874-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_874/2023</a> and <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_158-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_158/2023</a>).
In case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_874-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_874/2023</a>, the prosecutor requested FINMA to provide through mutual legal assistance the enforcement order of the proceedings against a Swiss bank as well as the report of the investigation agent appointed by FINMA. The Federal Supreme Court concluded that the prosecutor could obtain these documents from FINMA, even though the bank argued that the enforcement order and the report of the investigation agent were based on a privileged investigation report of the bank&#8217;s Swiss outside counsel.
In case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_158-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_158/2023</a>, the criminal justice authorities requested the bank in the same matter to provide the report of the internal investigation conducted by the bank&#8217;s Swiss outside counsel. The Federal Supreme Court concluded that the prosecutor could not obtain the report from the bank due to attorney-client privilege, although the bank had voluntarily submitted a copy of the report to FINMA.
The present Bulletin summarizes the key considerations of the Federal Supreme Court and their practical implications.
<h3>Key Considerations of the Federal Supreme Court on Attorney-Client Privilege</h3>
Authorities may forward information voluntarily disclosed to them, even if the information initially was subject to attorney-client privilege
In case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_874-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_874/2023</a>, the bank took the position that the enforcement order and the report of the investigation agent appointed by FINMA were protected by attorney-client privilege because these documents were based on the privileged internal investigation report of the bank&#8217;s Swiss outside counsel.
The Federal Supreme Court rejected the bank&#8217;s arguments. According to the court, attorney-client communications are generally protected by attorney-client privilege. However, disclosures to third parties (e.g., an insurance company or government agency) are not considered attorney-client communications, even if the disclosure contains privileged information. Once privileged information is knowingly and voluntarily disclosed to third parties, the information leaves the attorney-client relationship. Therefore, the attorney-client privilege does not prevent third parties from fulfilling their obligation to testify or produce documents. According to the court, this also applies to voluntary disclosures to FINMA, even if the supervised financial institution expressly reserves its rights to claim attorney-client privilege protection.
The Federal Supreme Court concluded that privileged information in the possession of FINMA could be obtained by the prosecutor through mutual legal assistance. According to the court, this applies all the more to the FINMA enforcement order and the report of the investigation agent appointed by FINMA.
The question of whether the prosecutor could obtain the privileged report of the bank&#8217;s Swiss outside counsel from FINMA was not part of the proceedings and was therefore not explicitly decided by the Federal Supreme Court. However, the court&#8217;s considerations make it sufficiently clear that this would likely be the case if the report was submitted to FINMA voluntarily. Thereby, the court confirmed that supervised financial institutions are not legally required to disclose to FINMA information protected by attorney-client privilege.
Investigation of the facts conducted by external counsel is protected by attorney-client privilege
In case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_158-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_158/2023</a>, the Federal Supreme Court confirmed that reports of internal investigations led by Swiss outside counsel are protected by attorney-client privilege, in particular when the internal investigation is conducted in connection with the advice and representation in existing and impending legal proceedings. In this context, the court concluded that the investigation and analysis of the relevant facts are part of the core area of outside counsels&#8216; work and are therefore privileged.
As a result, the Federal Supreme Court ruled that the report of the bank&#8217;s Swiss outside counsel was protected by attorney-client privilege. The exception established by the Federal Supreme Court in earlier decisions that reports by law firms are not subject to attorney-client privilege if they were prepared in connection with documentary obligations pursuant to the Anti-Money Laundering Act, did not apply in the present case.
Selection and analysis of pre-existing documents is protected by attorney-client privilege
In case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_158-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_158/2023</a>, the Federal Supreme Court also confirmed that while internal bank documents as such are not protected by attorney-client privilege, the selection and evaluation of those documents by Swiss outside counsel constitute legal advice and are therefore protected work product. Consequently, the copies of pre-existing documents such as bank internal documents attached to an investigation report from Swiss outside counsel are privileged.
As a result, the Federal Supreme Court ruled that not only the report of the bank&#8217;s Swiss outside counsel but also all documents enclosed to the report were protected by attorney-client privilege.
Voluntary disclosure to FINMA does not lead to general loss of attorney-client privilege
In case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_158-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_158/2023</a>, the Federal Supreme Court confirmed that the voluntary disclosure of privileged information to selected third parties does not constitute a general waiver of attorney-client privilege. Consequently, privileged documents and information voluntarily submitted to FINMA by a supervised financial institution do not lose their confidential character and therefore remain protected by attorney-client privilege. Hence, prosecutors may obtain privileged information from FINMA through mutual legal assistance – as this was decided in case <a href="https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?highlight_docid=aza://06-08-2024-7B_874-2023&amp;lang=de&amp;zoom=&amp;type=show_document" target="_blank" rel="noopener">7B_874/2023</a> – but may not seize the same privileged information directly from the supervised financial institution.
<h3>Conclusion and Practical Implications</h3>
The Federal Supreme Court has reinforced the protection of attorney-client privilege in the context of internal investigations. However, the court&#8217;s position that prosecutors may obtain privileged information from FINMA through mutual legal assistance leads to a disproportionate restriction of the application of attorney-client privilege in connection with mutual legal assistance proceedings between Swiss authorities. The decision is part of a series of Federal Supreme Court decisions that undermine the protection of attorney-client privilege in favor of an efficient and unimpeded cooperation between Swiss criminal and regulatory authorities.
This new case law applies not only to the disclosure of documents to FINMA, as in the case before the Federal Supreme Court, but also to disclosures of privileged information to any other authority (e.g., the Competition Commission or tax authorities) or third party. Financial institutions, as well as other companies, must therefore consider this case law whenever they intend to disclose documents and information voluntarily to authorities and other third parties. Anyone who knowingly and voluntarily discloses privileged documents and information to a third party now risks losing the protection of attorney-client privilege for disclosed documents and information in the possession of the third party.
To preserve the protection of the attorney-client privilege when cooperating with authorities, companies have the following options: (1) consider disclosure of privileged documents and information only if compelled; (2) when possible communicate privileged information orally rather than in writing; or (3) give regulators or other competent authorities access to privileged information on a review-only basis. None of these options is truly satisfactory, and they may be difficult to implement in practice. As a result, this new case law may have the effect of significantly limiting or at least complicating cooperation between companies and authorities as companies will now have to carefully decide on a case-by-case basis whether to disclose privileged information to regulators or other competent authorities.

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Swiss Court Limits and Reinforces Attorney-Client Privilege

Corporate / M&A

IP / IT

Competition

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Homburger News

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Homburger advised the selling shareholders on the sale of 100% of Samaplast AG to a group of investors led by Philipp Looser

Capital Markets

Financing and Investment Products

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The Homburger team is led by Daniel Hasler (Corporate / M&amp;A) and includes Anna Peter, Nicola Togni, Simone Schmid, Oliver Kneubühl, Matthias Müller, Yannick Reber, Fabio Gasser and Raphael Linder (all Corporate / M&amp;A), Dieter Grünblatt and Peter Müller (both Tax), Richard Stäuber and Nicolas Stocker (both Competition), Lorenzo Togni (Capital Markets) as well as Jürg Frick (Financing and Investment Products).

Competition

Main Contacts

Cartel Act Revision: National Council Sets the Course

First Finding of Abuse of Relative Market Power

Swiss Court Limits and Reinforces Attorney-Client Privilege

Homburger advised Temenos on the completion of the sale of its fund administration software business to Montagu Private Equity

Homburger advised the selling shareholders on the sale of 100% of Samaplast AG to a group of investors led by Philipp Looser

Homburger advises OC Oerlikon on the divestment of its Barmag textile machinery business for manmade fibers to Rieter

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