Revision of the Swiss Cartel Act - Parliament adopts partial revision: What you need to know

Background

The Swiss Cartel Act is being partially revised. In its final vote, Parliament approved today the amendment to the Cartel Act (CartA) following sometimes arduous debates in the two councils and their preparatory committees. The reform primarily aims to rely more heavily on an economic assessment across the assessment of agreements, abuse control, and merger review, with greater consideration of the effects on competition, and to bring the Cartel Act closer to international standards. In addition, a number of changes of a procedural nature have been introduced, together with measures to strengthen private cartel enforcement.

Following adoption of the Act, the amendments will now be implemented at ordinance level and through guidelines and forms issued by the Competition Commission (ComCo). The new provisions are expected to enter into force in 2027.

Below is a brief overview of the forthcoming changes and their implications:

Key changes at a glance

• Effects-based assessment of agreements affecting competition (Art. 5 para. 1bis revised CartA): In recent years, ComCo and the courts have increasingly focused primarily on the type of agreement when assessing agreements between undertakings (form-based approach). In future, both established experience with the relevant type of agreement (qualitative element) and the specific market conditions, such as market shares and barriers to entry (quantitative element), are to be taken into account. Although the weighting of the two elements will continue to depend on the type of agreement, the effects of an agreement will be given greater weight.
   
• Effects-based abuse control (Art. 7 para. 3 revised CartA): To establish the abuse of a dominant position or of relative market power (a qualified form of dependency), the Cartel Act will now explicitly state that, in addition to qualitative aspects (experience relating to the specific type of conduct), quantitative elements (specific circumstances in the market) must always be examined. The Federal Supreme Court has, however, most recently already followed this approach under existing law, holding that a practice is unlawful only if it is “effectively, potentially capable” of eliminating effective competition (judgment 2C_244/2022 of 23 January 2025 in Vifor/HCI Solutions).
   
• Narrower definition of sanctionable horizontal price agreements (Art. 5 para. 3 let. a revised CartA): Going forward, the category of price agreements amongst competitors that are subject to sanctions will no longer encompass all price agreements, but only agreements on minimum prices, fixed prices, or demand-side maximum prices. By contrast, agreements on supply-side maximum prices, for example in the form of gross price lists, are excluded. While their lawfulness must still be assessed on a case-by-case basis, they will no longer expose parties to administrative fines.
   
• Clarification on consortia (Art. 4 para. 1bis revised CartA): Consortia that enable or strengthen competition do not constitute an agreement that restricts competition and are therefore permissible without further assessment. This codifies existing practice.
   
• New test for merger control (Art. 10 paras. 1 and 2 revised CartA): The previous “dominance-plus” test will be replaced by the Significant Impediment to Effective Competition (SIEC) test, a test well known from EU merger control. ComCo will thus be able to prohibit a notifiable transaction if it significantly impedes competition and the notifying parties cannot demonstrate verifiable efficiencies to the benefit of customers. Switzerland is thereby aligning with an international standard. By contrast, the comparatively high turnover thresholds triggering a notification obligation will remain unchanged.
   
• Facilitation for notifications of international mergers (Art. 9 paras. 1bis, 1ter and 5 revised CartA): For international mergers that must be notified to the European Commission, the revised Act provides that no parallel notification in Switzerland is required if all product markets affected by the merger are defined geographically so as to include at least Switzerland and the EEA. Since market definition is often unclear or disputed, and responsibility for assessing the notification requirement lies with the undertakings concerned, this facilitation will likely be relied on only rarely in practice; in cases of doubt, parties are likely to continue notifying in Switzerland as well.
   
• Strengthening of private cartel enforcement (Art. 12 and 12a revised CartA): Standing to bring claims based on an unlawful restraint of competition (in particular claims for damages) will be broadened. Standing will now extend to any undertaking and any person whose economic interests are harmed or threatened - thus also to end customers, such as consumers and public contracting authorities. This closes an important gap. In addition, the limitation period for civil claims will not begin to run, or will be suspended, upon the opening of an investigation by ComCo, until a final decision on the lawfulness of the conduct has been rendered. The intention behind these changes is above all to facilitate private damages actions under competition law, which have so far been the exception in Switzerland.
   
• Amendments concerning procedure and calculation of fines (Art. 33 et seq. revised CartA): The revised Act will explicitly set out, in addition to the principle of official investigation (the authority’s duty to establish the facts ex officio), burden of proof, and presumption of innocence, the so-called opportunity principle, which allows the authority to refrain from prosecution in the case of minor infringements. Moreover, indicative time limits are intended to expedite proceedings. A party compensation regime will also be introduced for investigations of the Competition Commission, a right that previously arose only in subsequent appeal proceedings. The objection procedure for the assessment of planned conduct will also be made more practicable through certain changes: ComCo must now open a formal investigation (rather than merely a preliminary inquiry) within two months (instead of five) in order for the risk of sanctions not to lapse. Finally, the Cartel Act will provide that appropriate compliance efforts and voluntary compensation payments to the victims of an unlawful restraint of competition may be taken into account in the assessment of sanctions.

Outlook

Thanks to a more effects-oriented assessment, it will be possible going forward to better account for the pro-competitive aspects of cooperations among companies. At the same time, the new Art. 5 para. 1bis of the Cartel Act regarding the assessment whether an agreement significantly restricts competition leaves room for interpretation that should be applied with care. EU practice in distinguishing between “by object” and “by effect” restrictions of competition will be a useful point of reference.

In the area of merger control, the introduction of the SIEC test will likely result in a greater number of in-depth investigations as well as prohibitions or clearances subject to conditions and obligations. Here too, EU practice offers decades of experience with the SIEC test to guide case assessment.

Whether the changes to civil antitrust law will translate into more litigation before civil courts remains to be seen. To make antitrust damages actions in Switzerland more attractive, comparable to those in other jurisdictions, additional reforms will likely be needed.

Our international perspective

The competition team at CMS Switzerland stands ready to assist in preparing for the forthcoming legislative changes and in leveraging the new opportunities that will arise. As part of CMS, we have direct access to the expertise of our competition law colleagues across more than 40 countries worldwide. In many of these jurisdictions, several innovations now incorporated into the Cartel Act, such as the SIEC test, have long been established. We would be pleased to draw on the relevant expertise of our global CMS Antitrust, Competition & Trade practice group for you and your company.