The end of Swiss neutrality?

When people talk about Switzerland these days, they usually talk about FIFA, whose headquarters are in Zurich. Although there are many topics one could write about when it comes to FIFA, even in relation to antitrust law, this post does not deal with football, but with an area where Swiss and German cooperation is about to expand (while the German Football Association and the FIFA are having a rather difficult time with each other right now).    

A new cooperation?

The good relationship between German and Swiss antitrust practitioners has always been fostered, which I am personally able to account for – having participated in an exchange between German and Swiss antitrust students in Zurich already in 2007.

The German and Swiss antitrust authorities have also cooperated in some way in the past. Until now, however, the cooperation between the German and Swiss antitrust authorities was informal. This informal approach is now being formalized into an official cooperation by way of a 13-page document.

What is the subject of the cooperation?

The cooperation document was agreed on between the Swiss and German ministries of economy. It still has to be approved by the Swiss parliament and is expected to come into force at the earliest in autumn 2023.

The agreement will govern the future cooperation between the Swiss and German antitrust authorities:

  • Both authorities undertake to inform each other of enforcement actions which may affect vital interests of the respective other authority. In addition, enforcement actions can even be coordinated; in particular dawn raids can be conducted at the same time. Each authority may also carry out aforementioned enforcement measures on its own but should attempt to give the other authority an opportunity to comment. Furthermore, both authorities will inform each other in case a merger is notified in their respective country.
  • Both authorities may discuss information, including information obtained in the course of investigations. Information may only be disclosed if there is either explicit consent from the individual or the company concerned or, if there is no consent, under certain conditions laid out in the agreement, e.g. that the information in question concern conduct or legal transactions that both authorities are investigating.  However, there is no obligation to disclose information.
  • Information obtained in the course of the authorities’ respective leniency or settlement procedures is not to be disclosed, unless the companies or individuals providing the information have expressly consented in writing. Information must also not be exchanged in case the use of such information would violate the (German and Swiss) laws and regulations applicable to the respective authority’s enforcement activities, including the right of undertakings/individuals not to incriminate oneself and the attorney-client privilege.
  • Information obtained in the course of an investigation and provided to the respective other authority may be used by the receiving competition authority only for the enforcement of its competition laws with respect to the same or related conduct or transactions.

Are there similar agreements?

Yes. Switzerland was the first country with whom the European Commission concluded a so-called “second generation” agreement. Different to so called “first generation” agreements, which the European Commission had concluded with the United States (1991), Canada (1999), Japan (2003) and South Korea (2009), the agreement between Switzerland and the European Commission allowed the authorities to exchange evidence obtained in their respective investigations (subject to strict conditions).

What does this mean for companies operating in both countries?

The existing (good) informal cooperation between the two authorities will most likely be further improved. So, in parallel proceedings before both authorities, one should make sure to use a consistent approach, and one should also assume that both authorities might exchange documents at some stage. From a German perspective, it will also be interesting to see if the new agreement leads to the Swiss authority joining the Federal Cartel Office in its enforcement activities, in particular when it comes to “big tech”.

Image by SofieLayla Thal from Pixabay