Antitrust Recommendations and Information
Price cartels (Art. 5 para. 3 let. a Cartel Act)
- Do not agree on sales prices for your products with your competitors.
- Do not agree with your competitors that you will not undercut each other.
- Do not discuss your pricing strategies with your competitors.
- Do not discuss prices and costs with your competitors, e.g.:
- Sales or purchase prices, including their components;
- Minimum, standard or list prices;
- Price increases or reductions;
- Price-related factors like discounts, profit margins or calculation methods.
- Do not discuss participation or non-participation in a tender with your competitors.
- Do not determine the “winner” of a tender in advance by agreeing with your competitors on the prices of the “winner” or “loser" thereof.
- Should you be asked to participate in anticompetitive behavior, do reject the request clearly and immediately, report the incident to your organization and seek independent legal advice. You also have the possibility to report the behavior to the competition authorities here.
- Do make sure that you and your employees are aware of competition law and know which practices are against the rules; the company’s management should lead by example and train the employees.
Quantity cartels (Art. 5 para. 3 let. b Cartel Act)
- Do avoid agreements with your competitors about market shares.
- Do not agree with your competitors to reduce production or stocks e.g. in order to increase prices.
- Do not agree with your competitors on quotas for the purchase or sale.
- Do not determine production or sales volumes with your competitors.
- Should you be asked to participate in anticompetitive behavior, do reject the request clearly and immediately, report the incident to your organization and seek independent legal advice. You also have the possibility to report the behavior to the competition authorities here.
- Do make sure that you and your employees are aware of competition law and know which practices are against the rules; the company’s management should lead by example and train the employees.
Market partitioning cartel (Art. 5 para. 3 let. c Cartel Act)
- Do not agree on attributing markets with regard to specific territories, products, customers or sources of supply with your competitors.
- Do not discuss with your competitors where to sell and where not to sell.
- Do not discuss with your competitors who to sell and who not to sell to.
- Should you be asked to participate in anticompetitive behavior, do reject the request clearly and immediately, report the incident to your organization and seek independent legal advice. You also have the possibility to report the behavior to the competition authorities here.
- Do make sure that you and your employees are aware of competition law and know which practices are against the rules; the company’s management should lead by example and train the employees.
Resale price maintenance (Art. 5 para. 4 Cartel Act)
- Do not agree any fixed or minimum resale prices with your customers. Do train your employees (sales representatives) accordingly.
- Do not put pressure on your customers to comply with recommended resale prices.
- Do not provide incentives such as discounts to your customers in order for them to comply with recommended resale prices.
- Should you consider that fixing resale prices is efficient (e.g. in order to support sales promotion measures), do seek independent legal advice. You also have the possibility to contact the competition authorities.
- Do observe the Explanations to the Vertical Notice (paras. 4-9) and particularly the provisions on vertical resale price recommendations (paras. 8-9) that set out that unilateral resale price recommendations are unproblematicrecommendations under antitrust law (para. 8, first bullet point).
Absolute territorial protection (Art. 5 para. 4 Cartel Act)
- Do ensure that unsolicited orders from distributors and consumers from Switzerland are allowed to be served. Do train your employees (sales representatives) accordingly.
- Do avoid export bans.
- Should you consider that an absolute territorial protection is efficient (e.g. in order to temporarily protect investments for the development of new markets), do seek independent legal advice. You also have the possibility to contact the competition authorities.
- Do observe the Explanations to the Vertical Notice (paras. 10-13).
Exchange of information (Art. 5 paras. 1 and 3 Cartel Act)
The exchange of the information below is problematic under antitrust law:
- The exchange of confidential information such as prices, discounts, costs, sales conditions, capacities, production forecasts, current trading conditions, business strategies, customer data, details about negotiations with business partners.
- Exchange of information on current or future market behavior between competitors.
Recommended resale prices of associations (Art. 5 paras. 1 and 3 Cartel Act)
- Publications, recommendations and agreements on prices, tariffs and fees within industries have been the subject of various antitrust investigations. The publication of prices, tariffs and fees and corresponding recommendations by trade associations and industry organizations can constitute agreements or give rise to concerted practices and lead to unlawful agreements on prices between their members.
- At the same time, associations can publish prices, tariffs and fees without that the publication thereof constitutes a problem under antitrust law. On the one hand, so-called calculation aids can be created in which certain services are listed without exact indications of prices, tariffs or fees. These service descriptions can be used by association members to calculate costs and determine prices. Calculation aids that do not reveal the association members’ actual behaviors create a general basis for an individual price determination and are therefore generally unproblematic under antitrust law. On the other hand, prices, tariffs and fees based on historically and representatively collected data that is presented in an aggregated form – preferably by an independent third party (e.g. by a fiduciary office, a consumer organization or the Federal Statistical Office) – can be published. In addition to the industry, also customers should be able to access the published data.
Consortia
- In principle consortia do not constitute agreements to restrict competition within the meaning of antitrust law and are therefore admissible.
- An agreement to restrict competition solely exists if it has "a restraint of competition as its object or effect" (Art. 4 para. 1 Cartel Act). This is in principle not the case for consortia. On the contrary, consortia promote competition by enabling companies to bid for a specific project.
- Consortia are problematic under antitrust law, where they are constituted in order to restrict competition. They are also likely to be problematic, where companies would easily be able to carry out the project on their own. In such cases, consortia can constitute agreements to restrict competition within the meaning of the Cartel Act.
