The Swiss Competition Commission (ComCo) publishes case reports, decisions and other communications quarterly in Droit et politique de la concurrence (DPC)/Recht und Politik des Wettbewerbs (RPW). With respect to preliminary investigations (Article 28 of the Federal Act on Cartels and other Restraints of Competition (the Cartel Act)), the ComCo usually publishes final reports in DPC/RPW if:
- the concerned preliminary investigation has been closed (without the opening of an investigation); and
- the case presents relevant developments on competition law or on the ComCo's practice.
In this context, the ComCo must not reveal any business secrets (Article 25(4) of the Cartel Act). To that end and prior to publication, the ComCo submits a draft of its final report to the undertakings concerned by the preliminary investigation, requesting them to redact the content which they consider to be business secrets.
An undertaking concerned by the preliminary investigation at issue submitted its requests to redact the final report, which were not all agreed by the ComCo. The undertaking appealed the ComCo's decision to publish the preliminary investigation's final report (without considering all of its redaction requests).
On 30 January 2019 the appeal was decided by the Federal Administrative Court (FAC) (B-5117/2016).
The FAC held that the ComCo's decision to publish the contents of a preliminary investigation's final report must comply with the Federal Act on Data Protection and the Cartel Act.
Accordingly, the ComCo may publish a preliminary investigation's final report only if the following conditions are met:
- the ComCo is legally authorised to publish such reports (Article 19(1) of the Federal Act on Data Protection), which it was in this case, as the FAC had judged that the report fell within the scope of decisions and judgments that the ComCo is authorised to publish under Article 48(1) of the Cartel Act;
- the public interest in publishing prevails over other public interests or a private interest in confidentiality; further, there is no statutory duty of confidentiality preventing publication or special data protection regulations setting out specific requirements for publications (Article 19(4) of the Federal Act on Data Protection); and
- the ComCo complies with the data processing principles set out in the Federal Act on Data Protection – in particular, lawfullness, proportionality, good faith and correctness of data.
Within these boundaries, the ComCo benefits from a degree of leeway in deciding whether to publish a preliminary investigation's final report.
In the case at hand, the FAC considered that the public interest in publishing (ie, ensuring legal certainty for market participants, transparency of the administration's activities and cantonal and federal authorities' need for information) largely prevailed over the private interest of an undertaking in maintaining its good reputation.
Finally, the FAC decided that the ComCo's decision to publish the final report had been lawful, but enjoined the ComCo to:
- redact business secrets from the report (Article 25(4) of the Cartel Act) as detailed in the decision; and
- anonymise the report (according to the data processing principles set out in the Federal Act on Data Protection).
This decision provides a legal precedent for companies to request more extensive redactions of final reports that the ComCo has decided to publish (ie, redactions not limited to business secrets, but also personal data). Companies may request anonymisation of final reports on the basis of the Federal Act on Data Protection. In certain exceptional cases, the ComCo's decision to publish a final report may be challenged. Further, although this decision relates only to the publication of preliminary investigation final reports, the same reasoning is likely to apply to other types of decision or content that are published in DPC/RPW.
However, it should be noted that:
- an appeal has been lodged against this decision before the Supreme Court, which will likely further clarify the remit of the Federal Act on Data Protection with respect to publications by the ComCo; and
- the Federal Act on Data Protection is undergoing revision. Although the latest draft for a revised Federal Act on Data Protection dates back to 15 September 2017 and may thus change further to parliamentary deliberations, the definition of 'personal data' will likely be modified to exclude data relating to legal entities. Accordingly, the relevance of this precedent may prove to be temporary.
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