According to a Competition Commission press release of September 5 2011(1), the cooperation agreements between Swisscom (the former monopolist provider) and the local fibre-optic network utility providers in the cities of Basel, Bern, Luzern, St Gallen and Zurich, which include so-called 'hard' competition clauses, cannot be exempted from penalties in advance.
The parties to the cooperation agreements made use of their right to submit the critical provisions of their agreements to the commission, seeking an exemption from penalties for the entire duration of the agreements (approximately 40 years).
However, the commission's secretariat found that the clauses submitted by the parties contained agreements as to pricing and quantity which had the potential to hinder competition seriously. In such cases an exemption from penalty is not possible, since the commission lacks the power to grant exemptions from the application of competition law.
The secretariat did not prohibit the cooperation agreements, since the effect of the clauses on effective competition can be assessed only once they have had an impact on the market. It is now down to parties to operate their respective fibre-optic networks in compliance with competition law.
The commission appears to have already been notified of complaints, which may be an indication of the anti-competitive effect of the agreements on the markets concerned. The commission has made clear that, should it find that the operation of the networks violates competition law, it will take appropriate measures.
For further information on this topic please contact David F Känzig at Thouvenin Rechtsanwälte by telephone (+41 44 421 45 45), fax (+41 44 421 45 00) or email ([email protected]).
(1)The press release, which is in German, can be accessed at www.news.admin.ch/NSBSubscriber/message/attachments/24091.pdf.