On February 2 2011 the Federal Administrative Court partly rejected an appeal of a taxi company. The taxi company had been fined Sfr10,000 by the Competition Commission in 2008 for not having provided information requested by the authorities. The appeal court held that the penalty was legally justified in principle, but reduced the amount to Sfr5,000.

According to Article 40 of the Cartel Act, parties to agreements, undertakings with market power, undertakings involved in concentrations and affected third parties are obliged to provide the competition authorities with all information required for their investigations (unless they have a legal right to refuse to give evidence). In its appeal, the taxi company did not deny its obligation to provide information, but argued that the fine should be cancelled or reduced to a minimum because:

  • its market share was very small (2.62% of all taxis in the geographical area);
  • its turnover and number of employees it company as a small undertaking; and
  • one of the two managers had been seriously ill at the time of the request for information.

Referring to the jurisprudence of the former Appeal Commission, the court confirmed that the obligation to provide information applies to all parties mentioned in Article 40 of the Cartel Act, regardless of their market share or size.

However, the appeal court further stated that the market share and size of a company, in combination with other circumstances (eg, the type and importance of the refusal to provide information, the effects of the lack of cooperation on the procedure and the results of the investigation) must be taken into consideration when assessing the size of a fine. In the case at hand, these considerations led the court to halve the fine.

For more information please contact Marcel Meinhardt at Lenz & Staehelin by telephone (+41 58 450 8000), fax (+41 58 450 8001) or email ([email protected]).