On December 1 2014 a bilateral cooperation agreement on competition matters between the European Union and Switzerland came into force.(1) The cooperation agreement marks the first of what is likely to be a series of second-generation EU agreements with third countries. It explicitly allows the European Union and the Swiss Competition Commission to exchange information gathered during investigations, without the need to obtain consent from the parties.

Cooperation agreement

The cooperation agreement contains, among other things, the following traditional competition cooperation agreement clauses:

  • Mutual notifications – a general duty exists for the European Commission to inform the Swiss Competition Commission (and vice versa) of enforcement activities which may affect important interests in their respective territories (anti-competitive activities and merger control).
  • Coordination of enforcement activities – the European Commission and Swiss Competition Commission may coordinate their enforcement activities when dealing with related matters (particularly the timing of dawn raids).
  • Negative comity provisions – these aim to reduce the risk of conflict (ie, the requesting authority may suggest that enforcement activities be initiated or expanded if the requested authority is better positioned) and positive comity provisions, which permit the European Commission to request the Swiss Competition Commission (and vice versa) to initiate or expand enforcement activities.

In addition to the traditional clauses, the cooperation agreement provides for both commissions to exchange information obtained through the investigative process without prior party waivers (known as second-generation agreements), subject to the following conditions:

  • A formal request must be made by either authority;
  • The exchange of information must be limited to information already in the possession of the respective authority (including following a dawn raid);
  • Both authorities must investigate the same or related conduct or transaction; and
  • Information must not have been received in leniency or settlement procedures and must not be protected by procedural rights or privileges.

The use of transmitted information is subject to certain limitations. For example, the receiving authority can use the information only with a view to enforcing competition law in relation to an investigation or proceeding involving the same or related conduct (and for the purposes defined in the information request). The transmitted information may not be used in criminal proceedings against natural persons. In addition, the authorities must keep the information they have received confidential and ensure the protection of business secrets.

Exceptions

Notwithstanding these safeguards, the cooperation agreement carves out a certain number of exceptions. In particular, information may be disclosed:

  • to a court;
  • to the undertakings against which it may be used (as part of their rights of defence); or
  • insofar as is necessary for the exercise of the right of access to documents under the laws of the jurisdiction concerned.

The cooperation agreement also authorises the European Commission to disclose information to the competition authorities of EU member states within the European Competition Network.

Comment

The cooperation agreement leaves open numerous questions. For example, it does not provide for judicial protection against the exchange of information. In addition, while the cooperation agreement is expressly said not to apply to information obtained within leniency procedures, it is unclear whether the protected information is limited to the leniency statement or whether it also covers evidence submitted with the leniency application. Regarding settlement procedures, it is unclear whether the information exchanged before the settlement discussions will be carved out. The relevant time for cutting off the information exchange (the start of the settlement negotiations or final confirmation of the settlement) remains uncertain.

For further information on this topic please contact Patrick Sommer at CMS von Erlach Poncet Ltd's Zurich office by telephone (+41 44 285 11 11) or email (patrick.sommer@cms-vep.com). Alternatively, contact Pascal G Favre at CMS von Erlach Poncet Ltd's Geneva office by telephone (+41 22 311 00 10) or email (pascal.favre@cms-vep.com). The CMS von Erlach Poncet Ltd website can be accessed at www.cms-vep.com.

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