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Immunity and leniency
Immunity and leniency programmes
Is an immunity and leniency programme available for companies? If so, how does it operate?
Yes, a leniency programme is available for companies under Swiss law. It allows entities to benefit from a waiver of fines for cartels (Article 49a of the Cartel Act).
Complete immunity from penalties is granted if an undertaking reports its own participation in a restraint of competition and is the first to provide the Competition Commission (ComCo) with information that:
- allows for the opening of an investigation on unlawful restraints of competition; or
- establishes the existence of unlawful agreements affecting competition (Article 8(1) of the Cartel Act Sanctions Ordinance).
Can the enforcement authority decline or withdraw leniency? If so, on what basis?
Yes. Immunity is not granted if the undertaking:
- has coerced any other undertaking into participating in the infringement of competition law and has played the instigating or leading role in the infringement;
- has not voluntarily submitted to the competition authority all available information and evidence;
- does not continuously cooperate with the competition authority throughout the procedure; and
- does not cease its participation in the infringement at the latest on being ordered to do so by the competition authority (Article 8(2) of the Cartel Act Sanctions Ordinance).
Further, immunity from penalties is granted only if ComCo does not already possess sufficient information on the competition law infringement.
Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?
Yes. ComCo will reduce the penalty if an undertaking voluntarily cooperates in proceedings and terminates its participation in the competition law infringement no later than at the time at which it submits evidence. The penalty may be reduced by up to 50% (Article 12 of the Cartel Act Sanctions Ordinance).
What benefits (if any) are available for employees and former employees of a company that seeks leniency?
As employees cannot be penalised for original competition law infringements, they do not need leniency; therefore, no benefit exists for them.
Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?
No, there is no leniency programme specifically available for individuals.
Have there been any notable recent cases in which a leniency application was the subject of adjudication?
Yes, ComCo receives a large volume of leniency applications. They are often the starting point for investigations and subsequent decisions.
Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?
Under the Cartel Act, only violations of amicable settlements and administrative orders and violations in connection with merger notification duties and the obligation to provide information are subject to criminal penalties (Articles 54 and following). No immunity from criminal prosecution is available in these cases.
What is the procedure for a leniency application?
The undertaking must file a report with the Secretariat of ComCo. The Secretariat will then acknowledge receipt of the voluntary report, indicating the date and time of receipt. ComCo will subsequently decide whether to grant complete immunity from penalties.
What is the typical timeframe for consideration of a leniency application?
This depends on the workload of the Secretariat and whether the case is prioritised, as well as on the amount of information filed with it.
What information and evidence is required?
The report of the undertaking must contain all necessary information on:
- the undertaking itself;
- the nature of the reported infringement of competition law;
- the other undertakings participating in the infringement of competition law; and
- the affected or relevant markets.
The undertaking seeking immunity must also submit all evidence relating to the infringement of competition law that lies within its sphere of influence.
What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?
Subjects of the investigation have a right to access the file. However, access to the file may be delayed by the Secretariat until a later stage of the investigation. The full leniency application is generally kept as a separate file that is not accessible by other parties, and only evidence required by the Secretariat to prove its case will be transferred to the regular file.
What level of cooperation is required from applicants?
The entity must continuously cooperate with the Secretariat throughout the procedure, without restrictions or delay (Article 8(2)(c) of the Cartel Act Sanctions Ordinance).
What confidentiality protection is offered to applicants?
At least at the beginning of the proceedings, the application is treated as confidential. Other parties to the investigation will not be granted access to documents containing the applicant’s business secrets.
Can the company apply for a marker? If so, under which conditions?
Yes, it is possible in Switzerland to apply for a marker. In line with this, ComCo will assess the applications for leniency in the order in which they were received. Only the first undertaking (with a valid application) will be granted a full waiver of potential cartel penalties.
Undertakings can set the marker by contacting the Secretariat and providing it with the first set of relevant information. The Secretariat will confirm the time and date of the marker. Thereafter, the undertaking will be given a deadline to complete its application.
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