Information for authorities
The cantonal and communal authorities are responsible for ensuring that the provisions of the Internal Market Act are complied with and applied correctly in market access procedures and public invitations to tender. The Internal Market Act applies whenever a person lawfully carries out an economic activity outside their own territory (i.e. in another commune or another canton). In such cases, the Internal Market Act takes precedence over local communal or cantonal regulations.
Examples:
- A person is already authorised by another canton or another commune (e.g. professional licences in the healthcare sector, authorisation to work as a teacher, licence to operate a taxi, authorisation to run a crèche, etc.);
- A person is working lawfully in another canton without requiring authorisation and would like to do this work in their own canton as well, but the job there requires a licence (e.g. an engineer or architect);
- Local residents have an advantage in their profession over non-local competitors.
In addition, the Internal Market Act lays down minimum standards for public procurement by the cantons and communes, which apply in addition to the cantonal law on public procurement. Cantons and communes are required to publish details of major public procurement projects (Art. 5 para. 2 IMA) and not to discriminate against non-local suppliers (Art. 5 para. 1 IMA). In addition, cantons and communes are required to use a competitive bidding procedure if they decide to privatise their monopolies (Art. 2 para. 7 IMA).
Examples:
- Direct award of a major construction contract to a local company;
- Discriminatory criteria for awarding contracts, such as place of residence or business, local knowledge, etc.;
- Obligation to enter into a collective employment agreement;
- Consistent favouring of local suppliers when equivalent bids are submitted.
Duty of authorities and courts to issue rulings and to give notice
Cantonal and communal authorities are required to issue any restriction on free access to the market in the form of a ruling subject to appeal (Art. 9 para. 1 IMA). As the authority, they also bear the burden of proof. This means that they must explain in the ruling why the presumption of equality in Article 2 paragraph 5 IMA is rebutted in the specific case and to what extent the requirements of Article 3 paragraph 1 IMA are met. The ruling must be issued free of charge in a quick and simple procedure (Art. 3 para. 4 IMA).
The authorities and courts are required to give notice ex officio of any ruling or any court decision that relates to the Internal Market Act by sending it to the Competition Commission (Art. 10a para. 2 IMA).
Please send cantonal and communal rulings and court judgments without having to be requested to do so to the Competence Centre for the Internal Market in the ComCo Secretariat by post or email (BGBM@weko.admin.ch).
ComCo advice and opinions for authorities and courts
The Competence Centre for the Internal Market in the ComCo Secretariat is pleased to offer you assistance if you have any questions on the Internal Market Act. The ComCo Secretariat offers cantonal and communal authorities informal advice on market authorisation procedures and granting licences, on procurement and on drafting rulings and legislation that are relevant to the internal market.
At the request of cantonal and communal authorities and courts, ComCo may provide expert opinions on specific issues related to the application and interpretation of the Internal Market Act (Art. 10 para. 1 IMA).
ComCo has the right to be heard in proceedings before the Federal Supreme Court (Art. 10 para. 2 IMA).