The case

During its winter session, the Parliament adopted a partial revision of the Cartel Act, incorporating several concerns raised by the business community. Alongside substantive amendments to competition law, procedural rules were also updated in order to enhance the practicality, efficiency and predictability of enforcement.

Source: Economiesuisse

The commentary

At the heart of the revision lies the new Article 5(1bis) Cartel Act, which refines the legal standard for assessing competition agreements, i.e. the material significance of an agreement must be determined by means of a comprehensive assessment which takes into account both qualitative factors, most notably established experience relating to the nature of the agreement, as well as quantitative criteria, including market structure, the parties’ market positions and the specific competitive conditions at issue. The decisive factor is no longer the formal classification of an agreement, but its concrete capacity to significantly restrict effective competition in the relevant market.

The legislature now clarifies that competition agreements are not unlawful per se, but they are prohibited only where their potential anti-competitive effects are capable of materialising under the prevailing market conditions. As a result, antitrust intervention is no longer triggered primarily by abstract legal categories, but by a substantive, effects-based analysis in the individual case.

Parallel to this, the catalogue of presumptions in Article 5(3) Cartel Act has been refined. Indirect supply-side gross price agreements will no longer automatically fall under the presumption of an elimination of competition. Instead, they will be assessed under the general framework of Article 5(1) Cartel Act, allowing for a more nuanced and fact-specific evaluation.

Taken as a whole, the partial revision strengthens competition protection by enabling more targeted regulatory intervention where effective competition is genuinely at risk, while at the same time providing clearer legal parameters for competitively benign forms of cooperation. The Cartel Act is thus rendered more precise, more efficient and better aligned with its regulatory purpose.