What does the right of free access to the market according to the rules on origin entail?
This right has two aspects:
- The right to offer goods and services in another canton according to the regulations that apply in the canton where the supplier’s business is registered or is based (permanent establishment) (Art. 2 para. 1 and 3 Internal Market Act (IMA)).
Example: A taxi driver based in Winterthur (place of origin) has the right to carry a customer from Winterthur to Zurich (destination) or to pick up a customer in Zurich if that customer has requested him to do so. The regulations that apply are the Winterthur taxi regulations (place of origin principle).
- The right to have a permanent establishment at another place in order to offer goods and services, and to carry out this activity according to the regulations that apply at the place of first establishment (Art. 2 para. 4 IMA).
Example: A psychotherapist who has established a practice in the canton of St. Gallen (place of origin) has the right to establish herself in the canton of Zurich (destination) in order to do the same work there. The regulations that govern her activities are the provisions of the St. Gallen public health legislation that apply to psychotherapists (place of origin principle).
What does a right of non-discriminatory access to the market entail?
Under Article 1 paragraph 1 and Article 3 paragraph 1 letter a IMA, the cantonal and communal authorities are prohibited from treating non-local suppliers differently from local suppliers in order to give locals a competitive advantage.
Example: If commune A provides a subsidy to its residents who buy a new e-bike, it is not allowed to require its residents to buy the e-bike from a local dealer.
Does a person have a right of free access to the market if they carry out an activity at their place of origin that is not recognised, or not recognised as a distinct activity at the place of destination?
Yes, what is decisive is that the activity is allowed or is being carried out lawfully at the place of origin.
Example: A self-employed dental technologist in the canton of Zurich has a right of free access to the market in the canton of Graubünden, even though the regulations there require dental technologists to be qualified dentists.
Doesn’t the right of free access to the market according to the regulations at the place of origin (place of origin principle) lead to discrimination against local workers?
It is in the nature of the place of origin principle that a local resident might be worse off than a non-local if the market access regulations at the non-local’s place of origin are less strict than those at the place of destination (Inländerdiskriminierung, discrimination against Swiss or local citizens and businesses). The drafters of the Internal Market Act consciously accepted that local residents might be placed in a worse position in some cases.
In this connection, it must not be forgotten that the place of origin principle and the Internal Market Act have a deregulatory function. They place pressure on strict market access regulations, which can lead to deregulation and result in economic benefits.
Who bears the burden of proving that restrictions should be permitted in terms of Art. 3 para. 1 IMA?
The authority at the place of destination bears the burden of proof. It must prove that the statutory requirements are met for restricting market access (rebuttal the presumption of equality, equal treatment, existence of overriding public interests, proportionality). This means that the authority must provide adequate reasons for its decision.
Couldn’t the aim of creating a Swiss internal market be better achieved by replacing the various cantonal market access regulations by uniform federal regulations?
The IMA approach is not without controversy. Uniform federal regulations would guarantee equal treatment for all concerned, and increase legal certainty and transparency.
However, there are federalist reasons for not harmonising the law (e.g. politically undesirable centralisation by the federal government, potential for cantons to conclude inter-cantonal agreements as an alternative that safeguards federalist principles). In addition, harmonisation contains a risk of over-regulation, as it would reduce regulatory competition that protects against over-regulation. It would also mean that the potential for more innovative market access regulations would be lost.
Given that the Internal Market Act’s approach and the harmonisation approach each have their advantages and disadvantages, a “war of ideals" is not the best concept. In order to create a functioning internal market, it is more advisable to make use of both approaches as a complement to each other. This is what the Federal Parliament has done with the revision of Internal Market Act, for example, by consolidating the principle of mutual recognition, i.e. the place of origin principle, while at the same time recently introducing measures to harmonise market access rules for certain professions (e.g. Federal Act on Freedom of Movement for Lawyers).
Does the Secretariat of the Competition Commission provide information on legal issues and, if so, do we have to pay for this service?
The Secretariat, or more particularly its Competence Centre for the Internal Market, provides authorities and private individuals with oral or written information on the law, including basic information on legal rights. These services are provided free of charge.