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A Practical Insight to Cross-Border Competition Litigation 

by Reto Jacobs and Gion Giger

Published: May, 2009

Submission: May, 2009

 



1.1 Please identify the scope of claims that may Switzerland for breach of competition law.


Under the Swiss Federal Act on Cartels and Other Restraints of Competition (LCart), civil competition actions can be brought before Swiss civil courts by enterprises impeded by an unlawful restraint of competition. Such unlawful restraint of  competition may consist either: in unlawful horizontal or vertical agreements that significantly affect competition without being justified on grounds of economic efficiency or that lead to the suppression of effective competition (article 5 LCart); or in an abuse of a dominant position (article 7 LCart). The action is aimed at the enterprise restraining competition. In case of unlawful agreements, the adverse party is one or several enterprises involved in such unlawful agreements, in case of abuse of a dominant position, the adverse party is the enterprise having a dominant position in the market. It is not mandatory to sue several parties liable for the restraint together as these have joint and several liability.


1.2 What is the legal basis for bringing an action for breach of competition law?


Civil competition actions for breach of the LCart are based on article 5 LCart (unlawful agreements) or on article 7 LCart abuse of a dominant position). Articles 12 to 17 LCart provide some special procedural rules for civil proceedings. However, for the majority of the procedural rules the 26 Cantonal codes of civil procedure apply. A federal code of civil procedure will replace these 26 Cantonal codes within a few years (currently expected in 2010).


1.3 Is the legal basis for competition law claims derived from international, national or regional law?


The main legal basis is Swiss federal law. However, as already set out above, the majority of the procedural rules are laid down in Cantonal law.


1.4 Are there specialist courts in Switzerland to which competition law cases are assigned?


Civil competition actions are assigned to the normal civil courts and commercial courts respectively (if any). As every Swiss Canton is competent to establish its courts, the court before which civil competition actions have to be brought is assigned by Cantonal law. However, federal law requires that there is only one single court in each Canton which handles competition cases. Usually, the Cantonal rules assign civil competition actions to a higher Cantonal court. Some Cantons (Zurich, Berne, Aargau, St. Gallen) have established special courts for commercial matters whose judges have special knowledge with respect to commercial matters. These commercial courts are also the competent courts for civil competition actions. However, they are not specialised in competition law cases only, but more generally in commercial matters, including e.g. intellectual property.



1.5 Who has standing to bring an action for breach of competition law and what are the available mechanisms for multiple claimants? For instance, is there a possibility of collective claims, class actions, actions by representative bodies or any other form of public interest litigation?


In order to have standing for a claim, it suffices for the claimant to be affected by the restraint of competition. It is neither necessary for the claimant to be a competitor nor does the restraint have to be directly aimed at the claimant. However, according to the prevailing doctrine, consumers are not authorised to bring claims based on the LCart. Collective actions or actions brought by associations do not exist in Swiss competition law. Class actions are completely unknown in Swiss law. In connection with the preliminary work for the new federal code of civil procedure, the introduction of class actions was  discussed but rejected. However, it is possible that several claimants form a simple dispute association (einfache treitgenossenschaft). Furthermore, there is nothing to be said against several parties assigning their claims for damages or profit remittance to a third party. Such third party will then bring the entire claim as a claimant in its own name.



1.6 What jurisdictional factors will determine whether a court is entitled to take on a competition law claim?

In international cases, jurisdiction for civil competition actions in Switzerland is given if the defendant has its seat or domicile or – for lack of domicile - its ordinary residence or its settlement in Switzerland. Even if the defendant does not have a seat, a residence or a settlement in Switzerland, jurisdiction is given if the place where the act was committed or had its effects lies in Switzerland (article 129 of the Swiss Federal Act on International Private Law). If the Lugano Convention applies, the defendant can be sued at its seat or its domicile respectively or at the place where the act had its effects (article 2 and article 5 para. 3 Lugano Convention). Nationality or residence of the claimant is of no  significance. Similar rules apply in domestic cases without any international dimension. The court at the domicile or seat of the damaged enterprise or of the defendant or the court at the place where the act was committed or had its effects have jurisdiction (article 25 of the Federal Act on Civil Jurisdiction).


1.7 Is the judicial process adversarial or inquisitorial?


The civil judicial process in Switzerland is adversarial. 


 



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