The case

The National Council is setting the course for important amendments to the Swiss Cartel Act (Art. 5 and 7).

The commentary

The business community has been pointing out a systematic shortcoming in cartel law for many a year: Price agreements, quantity agreements or territorial agreements are prohibited across the board, regardless of whether they actually impair competition in a specific case or not. The National Council’s decision is the basis for a amendment: In future, competition agreements will only be considered illegal and will be sanctioned “if they significantly impair competition in a specific case” (amendment of Articles 5 and 7 of the Cartel Act), i.e. in future it will be taken into account whether or not an agreement has a significant impact on competition in individual cases.

Especially for small and medium-sized enterprises (SMEs), this amendment could lead to better planning certainty and may open up the possibility of entering into co-operations that were previously avoided due to the existing legal uncertainty.

No exception is made for professional sports: The National Council has rejected the idea of including professional sports leagues in the list of generally “justified agreements”.

The same goes for the Federal Council: They do not want such rules to be introduced as they would be to the detriment of the professional players.

By contrast, the Council of States wants to include professional sports leagues provided the measure ensures the financial viability of the clubs. Those in favour of this solution were primarily targeting the high player salaries.

Due to controversial points, the draft bill is going back to the Council of States.