Here you will find information on the so-called Leniency Programme (also known as "Leniency Programme"), i.e. how companies can avoid or reduce the threat of antitrust sanctions by making a leniency application.
For which sanctionable violations of antitrust law can a leniency application be filed?
The Cartel Act provides for sanctions for the following types of conduct:
- Horizontal competition agreements under Article 5(3) of the CartA, i.e. agreements between competitors on prices, quantities or territories (also known as "hardcore cartels"). This also includes bid rigging.
- Vertical competition agreements pursuant to Art. 5(4) of the CartA, i.e. agreements in the supply chain (e.g. between manufacturer/importer and distributor) on resale price maintenance and absolute territorial protection (so-called “hardcore vertical agreements”).
- Abusive practices by dominant companies under Art. 7 CartA, such as unlawful refusals to deal, discrimination or tying.
How high are the sanctions?
The sanction amounts to a maximum of 10% of the turnover achieved in Switzerland in the preceding three years. Depending on the turnover of the company in the market affected by the infringement, sanctions can be very high. The highest legally enforceable individual sanction to date was approximately CHF 180 million. Between 2004 and 2019, the Competition Commission imposed fines on around 130 companies totalling almost CHF 1.2 billion (of which around half is legally binding and enforceable).
How can sanctions be avoided or reduced with the Leniency Programme?
There is a legal possibility to avoid sanctions in whole or in part. For example, the Competition Commission grants full or partial immunity from any sanctions if companies disclose competition restrictions or cooperate in order to eliminate them.
Full immunity from the sanction shall be granted to the undertaking which first discloses its participation in a restriction of competition and
- provides information that allows the opening of an investigation (so-called “opening cooperation”);
- or provides evidence which enables the Competition Commission to establish the infringement (so-called “establishing cooperation”).
The “opening cooperation” is possible as long as the competition authority does not itself have sufficient information to open an investigation. If the authority already possesses such information or if an investigation has already been opened, only the “establishing cooperation” is still possible. In this case, mere information is no longer sufficient for full immunity, but the company must submit evidence in order to prove the infringement.
If full immunity has already been granted, other companies can still achieve a reduction of up to 50% of the sanction. The amount of reduction is calculated, among other things, based on the point in time and the importance of the submitted information and evidence for the success of the proceedings.
Any undertaking, which wishes to avoid the sanction in whole or in part by making a leniency application, must cooperate fully with the competition authority until the end of the proceedings (obligation to cooperate).
What should be done before filing a leniency application?
The "Explanatory note and form of the leniency program (voluntary report) (PDF, 322 kB, 30.03.2021)" (BBI 2015 3346-3358) contains more detailed information on the Leniency Programme and lists the relevant legal basis. Here you will also find the relevant forms for making a leniency application (see also the text).
How is a leniency application filed?
Since only the first company can obtain full immunity, the timing of the leniency application is crucial. The point in time at which the so-called marker is received by the competition authority is taken into account. The marker is the declaration of a company that it will submit a leniency application. It contains the most important information on the notifying company and the conduct notified.
The exact content of the marker is listed in Form A, which is attached to the information sheet on the Leniency Programme ("Explanatory note and form of the leniency program (voluntary report) (PDF, 322 kB, 30.03.2021)"). The marker can be set quickly and easily by filling in this short Form A and by subsequently sending it in electronic form (e.g. scan, photo) to the address leniency[at]comco.admin.ch.
Alternatively, the marker can be set in the form of an e-marker. The content is the same. The only difference is that the notifying company does not dispose of any documents (e.g. e-mail in the outbox) regarding the submission of the marker.
Who can answer my further questions?
The Secretariat of the Competition Commission is available to companies at any time - also informally - to answer questions on the Leniency Programme and to submit leniency applications. The easiest way to contact us is via our general contact number (+41 58 462 20 40). If you have general questions about the Leniency Programme and leniency applications, the reception desk will connect you with a competent member of staff. If you have specific questions prior to submitting a specific leniency application, please ask for the Director, for the Head of the Investigations Competence Center or for his deputy.