On May 17 2013, the EU and Switzerland signed an agreement that will allow their respective competition authorities – i.e. the European Commission (EC) and the Swiss Competition Commission (COMCO) – to cooperate to a greater extent than they currently do. In the past, the EU concluded similar agreements with the US (1991), Canada (1999), Japan (2003), and South Korea (2009). However, the EU/Switzerland agreement goes beyond those bilateral agreements as it provides scope for expanded information sharing among the competition authorities.
Structure in the Parties’ Antitrust Cooperation and Policy Dialogue
The EU/Switzerland Agreement seeks to bring more structure to the way the EC and COMCO currently cooperate. To this end, the EC and COMCO may engage in consultations to: (i) inform each other of their enforcement efforts and priorities; (ii) exchange views on economic sectors of common interest; and/or (iii) discuss policy issues of mutual interest.
In addition, the EU/Switzerland Agreement:
- Permits the EC to notify COMCO when undertaking enforcement activities that may affect important interests of Switzerland (and visa-versa) as is the case when an EC investigation concerns an undertaking that is organised under the laws of Switzerland, or when the anticompetitive activities concerned took place to a significant extent in Switzerland
- Lays the groundwork for the EC and the COMCO to coordinate enforcement activities; in particular, the timing of inspections
- Allows the EC to request (but not require) COMCO to initiate or expand enforcement activities, if there are indications that anticompetitive activities carried out in Switzerland may adversely affect important interests of the EU (and vice versa)
Extensive Exchange of Information between the Parties
Importantly, the EU/Switzerland Agreement allows the EC and COMCO to not only discuss, but also transmit to each other, information obtained in the course of their investigations – something that is only possible under the other antitrust cooperation agreements signed by the EU, if a waiver is provided by the investigated company.
In particular, under the EU/Switzerland Agreement:
- The EC and COMCO may discuss with each other any information, including information obtained through the investigative process (e.g. a reply to an EC Request for Information or documents seized during an EC dawn raid), if necessary for their cooperation
- The EC and COMCO may transmit to each other information in their possession, when the undertaking concerned has given its express written consent in this regard
- In the absence of an express written consent, the EC and COMCO may, upon request, transmit to each other information obtained through the investigative process, when they are investigating the same or related conduct
However, the EU/Switzerland Agreement does not allow the EC and COMCO to discuss or transmit to each other information:
- Obtained under their leniency or settlement procedures, unless the undertaking that provided the information has given it express written consent
- Obtained through the investigative process, if using the information would be prohibited under certain procedural rights and privileges, such as the right against self-incrimination and legal professional privilege
Finally, the EU/Switzerland Agreement provides for specific restrictions on how the information discussed or transmitted may be:
- Used by the EC and COMCO (e.g. such information may not be used to impose sanctions on natural persons)
- Disclosed (e.g. in the context of appeals or access to documents procedures)
What Does this Mean for Companies?
It is unclear whether the EU/Switzerland Agreement’s novel information exchange provisions are a feature to be reproduced in future antitrust cooperation agreements concluded by the EU. Certainly, (i) the deeply integrated character of the EU and Swiss economies, as well as (ii) the high degree of convergence of the two jurisdictions’ antitrust regimes in terms of substance, procedure and sanctions, may justify the inclusion of such extensive provisions in this specific Agreement.
Arguably, to date, the antitrust cooperation agreements signed between the EU and third countries have only marginally affected companies involved in antitrust investigations initiated by the EC and its counterparts. This is about to change – at least in so far as investigations of interest to both the EC and COMCO are concerned. Companies allegedly involved in anticompetitive conduct affecting both the EU and Swiss markets will more likely be subject to concurrent EC and COMCO investigations than they currently are, and will enjoy only limited control over the type of information that is transmitted between the two of them. As a result, investigative outcomes are expected to become more convergent and may give rise to more enforcement action on the part of COMCO.
Companies operating in Europe need to take note of this significant evolution in EU/Switzerland relations in the antitrust field and, where need be, reflect on their exposure in Switzerland.
N.B. The EU/Switzerland Agreement will enter into force following its approval by the European Parliament and the Swiss Parliament. It is estimated that the entry into force will not take place before the end of 2013.