On the principle nature of the Federal Court’s decisions in the GABA and BMW cases
The two judgments of the Swiss Federal Court are, as far as the significance test in Article 5 para. 1 FCA is concerned, of a principal nature and ultimately affect the interpretation of Art. 5 FCA as a whole. The Swiss Competition Commission – which has long been defending a different view of the criterion – wants the Court’s verdict to be confined to the legal presumptions in Article 5 paras 3 or 4 FCA – whereas outside these presumptions Article 5 para. 1 FCA would not have the role of a simple “de minimis rule” but that of a substantive criterion. Such cannot be the Court’s understanding.
Revision of the FINMA circular regarding public deposits with non-banks – submission of comments to the draft by Prager Dreifuss
Prof. Dr. Urs Bertschinger and Dr. Christian Schönfeld have submitted comments to the draft for the revision of the Swiss Financial Market Supervisory Authority FINMA’s circular 2008/3 “Public deposits with non-banks” which specifies the changes in the Swiss Federal Banking Ordinance (easement for FinTech providers). You can find the submitted comments in German here.
Merger control in Switzerland, market intelligence
Country report on merger control. Philipp and Bernhard discuss the latest trend in merger control in Switzerland.
Public Procurement 2017 – Switzerland
Bernhard Lauterburg and Philipp Zurkinden provide a brief overview on public procurement laws in Switzerland.
After the GABA decision on the significance test in competition law
With its decision in the GABA case, the Swiss Federal Supreme Court has given its understanding of the significance test in Article 5 SCA. In the court’s view, the element functions as a “de minimis rule” which by and large is to be interpreted the same way as the respective element in Article 101 TFEU (“appreciable effect”). This means in particular that restrictive agreements which the law presumes to be unlawful are generally speaking “appreciable”. In the final analysis, the court’s decision has rather broad effects: It requires from the Federal Competition Commission (FCC) to completely review its approach to Article 5 SCA (comprising the de minimis-criterion, the efficiency test and the core restrictions, i.e. presumptions). On the whole, this new approach should enhance legal certainty.