The Federal Administrative Court recently published the reasoning of its decision of
1. Applicability ratione personae of the Swiss Cartel Act
The mere possibility that a group parent company can control a group subsidiary is sufficient to assume a group fact and thus to qualify the group parent and subsidiary as a single undertaking in the sense of art. 2 para. 1bis
2. Applicability ratione materiae of the Swiss Cartel Act
The reservation of intellectual property rights stated in art. 3 para. 2
3. Relevant period for the assessment of a market position
The determination of dominance in antitrust proceedings is purely declaratory and relevant for the period under investigation only. It has, in principle, no binding effect for a later period.
4. Intellectual property protection of the interface
The Court denies that the interface at hand of the
5. Refusal of interoperability as refusal to deal pursuant to art. 7 para. 2 let. a
The Court confirmed the COMCO's decision whereas the
6. Illegal conclusion of tie-in contracts according to art. 7 para. 2 let. f
The Court also confirmed the COMCO's statement whereas the
7. Limited significance of economic concepts
In its judgment, the Federal Administrative Court pointed out repeatedly that all economic concepts are based on certain specifications and assumptions. Consequently, none of these concepts could claim absolute validity a priori and no concrete individual conclusion could generally be drawn from them.
8. General clause according to art. 7 para. 1
The Federal Administrative Court affirmed the so far undecided question that the general clause constitutes a sufficiently determined basis for a cartel sanction. The Court thus confirmed its previous case law, according to which an antitrust regulation may be gradually clarified through interpretation. It remains to examine in each case whether the required degree of determination due to the respective circumstances is exceptionally not fulfilled for the specific economic conduct.
9. Statute of limitations for investigations and enforcement in the case of qualified infringements of antitrust law
The Court contradicted the COMCO's view that restraints of competition are not time-barred. The Court then examined and rejected the analogous application of several provisions of antitrust, administrative criminal, criminal and administrative law. It based the statute of limitations on the provisions of the Swiss Code of Obligations and considered that a statute of limitations of 10 years should apply as a general statute of limitations under antitrust law. The statute of limitations for investigations begins with the termination of the antitrust conduct and is interrupted by the opening of an investigation by the antitrust authorities. The limitation period for enforcement begins to run with the legally binding decision of the COMCO or of the appeal courts, respectively.
The Federal Administrative Court ruled on a total of about 60 legal issues, 20 of which were of a prejudicial nature.
The media release of the Federal Administrative Court can be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Dr.
Schwanengasse 1
Berne
3001
© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source