Market access rights

The right to free access to the market

The Internal Market Act aims to create a Swiss domestic market in which businesses are able to develop without being subject to cantonal or communal restrictions on market access if at all possible. It guarantees that private individuals and legal entities that are permanently settled or based in Switzerland have free and equal access to the market throughout Switzerland in order to carry out their business activities (Art. 1 para. 1 IMA).

Following on from Article 1 paragraph 1 IMA, Article 2 IMA specifies the principle of origin; this applies both to business activities that go beyond internal borders and to founding a permanent establishment:

  • Under Article 2 paragraph 1 IMA, every person has the right to offer goods and services and to do work anywhere in Switzerland, provided carrying out the activity concerned is permitted in the canton or commune where the person or business has their permanent settlement or seat. The regulations in the supplier’s canton or commune of establishment are decisive (Art. 2 para. 3 IMA).
  • Under Article 2 paragraph 4 IMA, any person who carries out an activity lawfully has the right to establish themselves anywhere on Swiss territory in order to carry out this activity and may carry out this activity according to the regulations that apply in the place of first establishment. This applies even if the person stops carrying out the activity at the place of first establishment.

The principle of origin is based on the statutory presumption that the various cantonal and communal market access regulations are equivalent (Art. 2 para. 5 IMA).

The right of free access to the market in accordance the rules on origin is not absolute. The authority in the place of destination may restrict access to the market for non-local suppliers by imposing requirements or conditions. To do so, the competent authority must in a first step examine whether the general-abstract market access rules and the case law based thereon at the place of origin of a non-local supplier offers protection for public interests equivalent to the regulations at the place of destination (presumption of equivalence in Art. 2 para. 5 IMA). If the presumption of equivalence is not rebutted in a specific case, the non-local supplier must be granted access to the market without further formalities (BGE 135 II 12 E. 2.4).

Restrictions on non-local suppliers in the form of requirements or conditions are permitted, provided the regulations at their place of origin offer a significantly lower level of protection of public interests in the case concerned than the regulations at the place of destination (rebuttal of the presumption of equivalence) and provided the restrictions a) apply equally to local residents, b) are essential to safeguard overriding public interests and c) are reasonable (Art. 3 para. 1 IMA). Under Article 3 paragraph 2 IMA, restrictions are clearly unreasonable and therefore unlawful if (list not exhaustive):

  • any public interests are already protected by the regulations at the place of origin ;
  • the evidence and guarantees that the supplier has already provided at the place of origin are sufficient;
  • a seat or a permanent establishment is required at the place of destination;
  • adequate protection is guaranteed as a result of the non-local supplier’s professional experience.

Under Article 4 paragraph 1 IMA, cantonal or cantonally-recognised professional qualifications are valid to carry out an economic activity anywhere in Switzerland, unless they are subject to restrictions under Article 3 IMA. This provision represents a complement to the right of free access to the market in accordance with rules on origin. It is intended to guarantee that the operation of the internal market in Switzerland is not made impossible by differing cantonal authorisation requirements for activities that require authorisation.