Merger control
Strengthening of civil antitrust law
Clarification regarding unlawful agreements
Procedural amendments

The Swiss Federal Council (the Council) has started the consultation process on a further revision of the Swiss Cartel Act. After having significantly broadened the dominance rules, the Federal Council now aims to reform Swiss merger control. The envisaged revision also seeks to strengthen private damages litigation and provides for several procedural amendments as well as a clarification with respect to unlawful agreements. The new provisions are not expected to come into force before 2023.


Following the significant extension of Swiss dominance provisions, which came into force on 1 January 2022, the Federal Council has published further proposed amendments to the Swiss Cartel Act (CartA) for consultation (the Proposal). The aim of the Proposal is to modernise Swiss merger control, strengthen civil antitrust law, clarify the interpretation of hardcore agreements, and improve administrative procedures.

Although the Federal Council and Parliament are likely to amend at least parts of this new Proposal after the consultation process, the below is already noteworthy.

Merger control

New exemption from filing obligation
Under current law, transactions that meet the turnover thresholds of article 9(1) of the CartA must be notified to the Swiss Competition Commission (ComCo). There is no exception to this filing obligation for cross-border mergers. The Federal Council is now proposing such an exemption. A filing shall no longer be necessary if two cumulative conditions are met:

  • The proposed transaction must not have a Swiss focus (ie, all product markets affected by the transaction must geographically comprise Switzerland and at least the European Economic Area (EEA)). If the transaction affects even just one national Swiss market, the filing obligation remains in effect.
  • The proposed transaction must be reviewed by the EU Commission. If the transaction is not notified to the EU Commission, the exemption does not apply, even if the relevant markets geographically comprise Switzerland and at least the EEA.

In summary, the Federal Council proposes the introduction of a one-stop-shop principle for cross-border transactions that do not have a Swiss focus and are notified to the EU Commission. It aims to avoid parallel proceedings of ComCo and the EU Commission and thus allow companies to benefit from cost savings due to this exemption.

However, the practicability of the proposed rule is questionable. In its decisions, ComCo often does not provide a conclusive geographic market definition. It would, therefore, be necessary to specify in more detail on which basis the market definition, which is relevant for the assessment of the filing obligation, would have to be carried out.

Adoption of SIEC test
The Proposal adopts the significant impediment to effective competition (SIEC) test as the relevant standard for merger control. At present, Swiss merger control still assesses transactions based on the dominance test (ie, a transaction may only be prohibited (or subject to remedies) if it creates or strengthens a dominant position liable to eliminate effective competition). This arguably high threshold has led to only three prohibition decisions of ComCo.

Under the proposed SIEC test, ComCo could prohibit a transaction (or make clearance subject to remedies) if the following two cumulative conditions are met:

  • The transaction must significantly impede effective competition, in particular by establishing or strengthening a dominant position.
  • The transaction may not produce any efficiency gains proven by the notifying parties for customers, which result specifically from the transaction and offset the disadvantages of the significant impediment to competition.

The adoption of the SIEC test leads to harmonisation with EU practice – an overall development that has become increasingly important in Swiss competition law in recent years. It furthermore allows ComCo to take unilateral and coordinated effects as well as efficiency gains into account.

As it does not require the potential elimination of effective competition, the SIEC test would lower the existing threshold for intervention. If introduced, it is likely that ComCo will intervene more often in (domestic) mergers. In particular, this may hold true in cases of unilateral effects, where ComCo cannot intervene under the current regime when effects are below the threshold for single market dominance. However, an established practice with respect to the SIEC test must first develop in order for companies to have sufficient legal certainty.

Strengthening of civil antitrust law

Under current law, the group of persons eligible to civil damages stemming from anticompetitive conduct is limited (eg, end customers are not able to seek such remedies). As such, civil antitrust law has had little to no significance in Switzerland. However, with regard to civil enforcement of competition law claims, the Proposal now provides for an extension of civil law remedies to anyone whose economic interests are threatened or violated by an unlawful restriction of competition. Hence, in the future, end customers (including consumers and public authorities) may seek such remedies.

In order to ensure that the duration of administrative competition law proceedings does not preclude the civil enforcement of claims, the statute of limitations of three years for claims based on an unlawful restriction of competition shall be suspended from the opening of an investigation by ComCo until a legally binding decision is rendered. Hence, parties seeking remedies are no longer forced to claim damages at an early stage.

In addition, the Proposal foresees strengthening of another aspect: it aims to avoid duplication of financial burdens and to promote voluntary compensation for victims of anti-competitive practices. For this reason, voluntary compensation for damages or voluntary surrender of profits shall be taken into account for the amount of the competition law penalty. With this revision, the Federal Council mirrors the recent practice of ComCo.

It is to be expected that the strengthening of civil antitrust law will lead to more claims for damages in the future. However, due to the possibility of obtaining a reduction in penalties for voluntary damages payments, undertakings will also have an incentive to settle with victims of anticompetitive conduct.

Clarification regarding unlawful agreements

The Proposal suggests that competition authorities must take into account both qualitative and quantitative criteria when assessing whether agreements significantly restrict competition and, therefore, are unlawful. This proposed clarification is a response to the criticised Gaba case law of the Federal Supreme Court, with which the Court significantly tightened the practice on unlawful agreements in Switzerland. According to the aforementioned case law, certain hardcore agreements constitute a significant restriction of competition already by virtue of their object and no quantitative effects such as market shares have to be taken into account.

Although the Proposal now aims to modify this case law by reintroducing an effects-based analysis, it remains unclear whether this will actually make hardcore agreements with insignificant effects on competition permissible again.

Procedural amendments

With regard to the administrative procedures, the Proposal provides for the following amendments:

  • Regulatory time frames – in order to speed up the administrative procedures, the Proposal suggests specific time frames for both competition authorities and courts. These time frames are merely indicative and not enforceable. In case the authority is not in a position to meet them, it must explain the reasons for this to the parties.

In view of the long duration of proceedings before competition authorities and courts, the introduction of regulatory time frames is to be welcomed. In any event, it should be noted that the principle of acceleration already applies in antitrust proceedings today.

  • Consultation procedure – the Proposal seeks to improve the consultation procedure (Widerspruchsverfahren), which allows companies to notify planned conduct and agreements to ComCo before implementation, thereby avoiding penalties. With the proposed amendments, the Federal Council intends to make the consultation procedure, which is currently hardly used, more attractive by reducing the period in which ComCo must respond and limiting the penalty risk to cases in which ComCo opens a formal investigation rather than a simple preliminary investigation.

It remains to be seen whether this amendment will lead to an increased use of the consultation procedure in practice.

  • Compensation – the Federal Council proposes that parties shall be compensated for costs incurred also in proceedings before the competition authorities in case of a (partial) win. So far, compensation may only be granted before the Swiss courts.

The introduction of party compensation is to be welcomed. Antitrust proceedings are complex and can take several years. If the suspicions against a company prove to be unfounded, the company must be financially compensated.


Interested parties may comment on the Proposal until 11 March 2022. After evaluation of the results of the consultation, the Federal Council will then define the parameters of the new draft legislation before it is dealt with in Parliament. The final new provisions are not expected to come into force before 2023.

For more information please contact Marcel Meinhardt or Sandro Travaglini at Lenz & Staehelin by telephone (+41 58 450 80 00) or email ([email protected] or [email protected]). The Lenz & Staehelin website can be accessed at