Q&A: enforcement of dominance rules in Switzerland

Enforcement proceedings

Which authorities are responsible for enforcement of the dominance rules and what powers of investigation do they have?

The Swiss Competition Commission, consisting of 11 to 15 members (currently 12), takes decisions, remedial actions and sanctions against undertakings abusing their dominant positions. It is also competent to take decisions and remedial actions against undertakings abusing their relative market power. The specific chambers of the Competition Commission have the authority to issue partial decisions regarding the closure of investigations and to approve amicable settlements and other measures, including fines and costs, for some of the undertakings involved in an investigation, while the investigation continues for the other undertakings. The Secretariat of the Commission is empowered to conduct investigations and, together with a presiding member of the Commission, to issue any necessary procedural rulings. The Secretariat submits draft decisions to the Commission and implements Commission decisions. It has around 75 employees (around 65 full-time equivalents), including a significant number of economists.

The Secretariat has broad investigative powers, including, together with a presiding member of the Commission, the ordering of searches (ie, dawn raids) and the seizure of documents and electronic data, hearing third parties as witnesses, and requiring the parties to an investigation to give evidence. Upon a specific request for information, the undertakings under investigation are obliged to provide the competition authorities with all the information required for their investigations and produce the necessary documents; however, due consideration must be given to the nemo tenetur principle, namely the right against self-incrimination.

In January 2016, the Secretariat published a note on selected instruments of investigation in which it laid out its best practice, particularly with regard to inspections and the seizure of documents and electronic data. It published a note on amicable settlements in February 2018, which contains, inter alia, a draft wording for amicable settlements. Additional notes exist, for example, with regard to the treatment of business secrets, the decision-making process of the Swiss Competition Commission and the administration of deadlines in investigations.

What sanctions and remedies may the authorities impose? May individuals be fined or sanctioned?

A dominant undertaking condemned for unlawful (abusive) conduct risks fines up to 10% of the turnover that it cumulatively achieved in Switzerland in the preceding three financial years. The amount of the fine is dependent on the duration and severity of the unlawful conduct and is also calculated by taking into account the likely profit that resulted from the unlawful conduct. The Swiss Cartel Act Sanctions Ordinance of 12 March 2004 lays down the method of calculation of fines in detail. Contrary to market-dominant undertakings, companies with 'mere' relative market power are not subject to direct fines if they abuse their position.

The largest fine ever issued for an abuse of a dominant position, 333 million Swiss francs imposed on Swisscom, the incumbent Swiss telecommunications operator, was annulled by the appellate courts (see Swiss Federal Supreme Court, LPC 2011/3 – Terminierungspreise im Mobilfunk – Sanktion, p. 440). The Swiss Competition Commission imposed another high fine on Swisscom in 2009. In this case, Swisscom was fined 220 million Swiss francs for an unlawful price squeeze in the asymmetric digital subscriber line market (LPC 2010/1 – Preispolitik Swisscom ADSL, p. 116). The Swiss Federal Administrative Court upheld the Competition Commission's finding on the merits but reduced the fine to approximately 186 million Swiss francs (LPC 2015/3 – Preispolitik Swisscom ADSL, p. 561), which was confirmed by the Swiss Federal Supreme Court (case 2C_985/2015 – Preispolitik Swisscom ADSL).

Swiss Post, the incumbent, state-owned provider of postal services in Switzerland, has also received a significant fine in the past decade. In its decision dated 18 December 2017, the Swiss Competition Commission found that Swiss Post abused its dominant position in the market for letter post (commercial customers), in particular by committing price discrimination, and fined it approximately 22.6 million Swiss francs.

In addition to the ability to impose fines, the Swiss Competition Commission has a wide range of decision-making and remedial powers in its arsenal. It can issue injunctions to terminate a conduct or to change and modify specific business practices (for instance, to grant access or to modify rebate schemes or discriminatory pricing practices).

In contrast to certain other jurisdictions, the Swiss Federal Act on Cartels and other Restraints of Competition of 6 October 1995, as amended (the Cartel Act), does not provide for sanctions that may be imposed on individuals acting on behalf of an undertaking that abused its dominant position. However, individuals may be fined in certain other cases, particularly in violations of a binding decision of the Competition Commission (article 54 of the Cartel Act) or if the individual itself qualifies as an undertaking in the sense of the Cartel Act.

Can the competition enforcers impose sanctions directly or must they petition a court or other authority?

Sanctions can be imposed by the Swiss Competition Commission autonomously, without it having to petition any court. In that regard, the Swiss appellate courts only come into play where a sanction decision of the Competition Commission is challenged.

What is the recent enforcement record in your jurisdiction?

Typically, each year only a few investigations are opened and final decisions rendered with regard to abusive conduct of dominant undertakings if any. The enforcement record is certainly lower compared to investigations and decisions concerning anticompetitive agreements. However, notwithstanding these numbers, very high fines have been imposed on undertakings that have been held responsible for abusive conduct.

In recent times, enforcement in Switzerland seems to have focused on digital issues. For example, on 13 November 2018, the Swiss Competition Commission opened an investigation into several major Swiss financial institutions. The investigation had the purpose of clarifying whether these institutions had reached an agreement to boycott mobile payment solutions of international providers (such as Apple Pay or Samsung Pay) to protect TWINT, a Swiss mobile payment solution. A preliminary investigation into Apple, also concerning Apple Pay, was concluded by the Secretariat of the Swiss Competition Commission in December 2018 for expediency; Apple Pay at point of sale terminals can interfere with payments made using TWINT. Following the intervention of the Secretariat, Apple committed to offer a pro-competitive technical solution.

In December 2023, the Swiss Competition Commission fined Swisscom 18 million Swiss francs for its conduct relating to the expansion of fibre optic networks. Swisscom altered the network construction set-up in areas in which it was expanding independently and no longer offered competitors direct access to the network infrastructure. According to the Commission, this conduct restricted innovation and business opportunities for Swisscom's competitors and restricted consumers' choice of providers and product diversity. The decision is currently under appeal before the Swiss Federal Administrative Court.

With regard to the concept of relative market power, which was introduced in 2022, it remains uncertain whether many proceedings will be initiated. In a newspaper article, the Swiss Competition Commission stated its intention to issue landmark cases relatively soon after the new regulations entered into force and that it plans to refer complainants to the civil courts. Therefore, the Swiss Competition Commission aims for the prohibition of the abuse of relative market power to be primarily enforced by civil courts.

Until now, only a couple of investigations have been opened under the application of the new relative market power rules:

1. The first investigation concerned the alleged refusal of a pharmaceutical company to allow a Swiss pharmaceutical wholesaler to purchase products at more favourable conditions abroad. The case was closed after the Swiss Competition Commission concluded that no relative market power was present.
2. The second investigation dealt with a similar accusation. In November 2024, the Competition Commission issued its decision in this case, marking the first-ever confirmation of the abuse of relative market power since this concept was introduced in Switzerland. The Commission ruled that the French publishing group Madrigall must allow the Swiss bookseller Payot to directly import its books under the standard French conditions. Madrigall's refusal to do so was deemed an abuse of relative market power.
3. The third investigation examined whether the renowned German car manufacturer BMW has abused its alleged relative market power by unexpectedly terminating its long-term business relationship with an authorised dealer and after-sales service provider that made significant investments in the brand on the basis of an allegedly guaranteed continuing business relationship. In a ruling dated 30 June 2025, the Competition Commission closed its investigation into BMW, after BMW had extended or renewed contracts with the dealer who had filed the complaint. At the same time, after a summary substantive review, it imposed substantive procedural costs on BMW.
4. A fourth investigation was opened by the Competition Commission on 24 June 2025 against Beiersdorf, as the Swiss retailer Migros allegedly has been denied access to Nivea products at comparable foreign conditions. This investigation is ongoing.

Where a clause in a contract involving a dominant company is inconsistent with the legislation, is the clause (or the entire contract) invalidated?

Contracts entered into by dominant undertakings that constitute an abuse of a dominant position may be declared null and void, in whole or in part, with retroactive effect (ex tunc; see also article 13 of the Cartel Act and the decision of the Swiss Federal Supreme Court, 12 June 2008, 134 III 438). However, the issue of nullity remains controversial, and there is no specific case law with regard to contracts concluded by dominant undertakings.

To what extent is private enforcement possible? Does the legislation provide a basis for a court or other authority to order a dominant firm to grant access, supply goods or services, conclude a contract or invalidate a provision or contract?

Civil courts are expressly empowered to apply the Cartel Act. In particular, any person hindered by an unlawful restraint of competition from entering or competing in a market is entitled to request before civil courts the elimination or discontinuation of the hindrance, damage and satisfaction in accordance with the Swiss Code of Obligations of 30 March 1911 or the surrender of unlawfully earned profits (article 12 of the Cartel Act). Hindrances of competition include, in particular, the refusal to deal and discriminatory measures.

The Cartel Act empowers civil courts (at the plaintiff's request) to rule that any contracts are null and void in whole or in part, or that the person responsible for hindering competition must conclude contracts with the person so hindered on terms that are in line with the market or the industry standard (article 13 of the Cartel Act).

The Swiss Federal Supreme Court upheld an order of a lower civil court to a cooperative society managing a cheese-maturing cellar to accept a company as a member and to grant access to the cellar (LPC 2015/4 – Etivaz, p. 896).

In another case, the Cantonal Court of Vaud ordered a European sport federation to invite an athlete to one of its competitions. A recommendation issued by the sport federation, a Swiss-domiciled association, not to invite athletes who could harm the events because of their past doping offences was considered as infringing rules on abuse of a dominant position (article 7 of the Cartel Act) and injuring athletes' personality rights (Cantonal Court of Vaud, 24 June 2011, published in CaS 2011, 282).

Civil courts also have the ability to order interim measures (articles 261 to 260 of the Swiss Civil Procedure Code of 19 December 2008). Moreover, provided that there is sufficient public interest, the Swiss Competition Commission can order interim measures on its own (see, eg, landmark decision of the Swiss Federal Supreme Court, LPC 2004/2 – Sellita Watch Co SA/ETA SA, p. 640). For interim measures to be granted, it is required that, inter alia, the alleged anticompetitive conduct causes a disadvantage that cannot be easily remedied.

With an interim decision of 12 July 2017 (LPC 2017/3 – Eishockey im Pay-TV, p. 410), the Swiss Competition Commission refused to grant Swisscom interim measures in its investigation into UPC, a subsidiary of Liberty Global plc, on the suspicion of abuse of a dominant position in the field of ice hockey broadcasting. The Commission thereby confirmed a strict approach regarding interim measures. Despite clear indications for the abuse of a dominant position by UPC, it denied the claim for interim measures because, according to the Commission, the conditions for a disadvantage that cannot be easily remedied were not satisfied. Even though it refused to grant the interim measures, the Commission imposed a fine of approximately 30 million Swiss francs on UPC with regard to its abusive conduct against competing TV platform operators in the ice hockey broadcasting markets in its decision on the merits in October 2020. The decision was mostly upheld by the Swiss Federal Administrative Court in October 2023 and by the Swiss Federal Supreme Court in September 2025 (see the decision of the Swiss Federal Supreme Court 2C_638/2023 of 24 September 2025).

In December 2020, the Commission issued interim measures prohibiting Swisscom from denying competitors access to end-to-end lines during the expansion of its fibre-optic network to safeguard competition for the duration of the investigation. These interim measures have been confirmed by both the Swiss Federal Administrative Court and the Swiss Federal Supreme Court.

Do companies harmed by abusive practices have a claim for damages? Who adjudicates claims and how are damages calculated or assessed?

Yes, claims for damages exist and are adjudicated by the civil courts. Under Swiss law, the quantum of damages generally equals the difference between the actual financial situation of the party aggrieved by the abusive conduct and the hypothetical situation in which that party would have been without the abusive conduct. Because it is often not possible to prove the quantum of damages in exact figures, courts in principle have the ability to estimate damages based on plausible assumptions (Commercial Court of the Canton of Aargau, LPC 2003/2 – Allgemeines Bestattungsinstitut, p. 451). Article 42, paragraph 2 of the Swiss Code of Obligations explicitly states that courts shall estimate the quantum of damages at their discretion, in the light of the normal course of events and the steps taken by the aggrieved party, where the exact quantum of loss or damages cannot be established. However, any information substantiating and facilitating the estimation must be brought forward by the party claiming damages, which in practice creates high hurdles in the burden of proof.

To what court may authority decisions finding an abuse be appealed?

Swiss Competition Commission decisions holding undertakings responsible for unlawful abusive conduct and, to a limited extent, also its interim procedural decisions, can be challenged before the Swiss Federal Administrative Court. An appeal can be lodged on the following grounds: wrongful application of the Cartel Act; the facts established by the Commission were incomplete or wrong; or the Commission's decision was unreasonable. Hence, appeals before the Swiss Federal Administrative Court are 'full merits' appeals on both the findings of fact and law.

The judgments of the Swiss Federal Administrative Court may be challenged before the Swiss Federal Supreme Court. In proceedings before the Swiss Federal Supreme Court, judicial review is limited to legal claims; in other words, the flawed application of the Cartel Act or a violation of fundamental rights set forth in the Swiss Federal Constitution, the European Convention of Human Rights or other international treaties. The claim that a decision was unreasonable is fully excluded and claims with regard to the finding of facts are basically limited to cases of arbitrariness.

The judgments of upper cantonal civil courts rendered in civil actions may also be ultimately challenged before the Swiss Federal Supreme Court. However, the same restrictions as for appeals against judgments of the Swiss Federal Administrative Court apply.