Amendment to the Swiss Cartel Act
On 19 December 2025, after lengthy debate, the two chambers of the Swiss Parlia-ment adopted various amendments to the Cartel Act (CartA). Despite numerous changes to the wording of the Act, this is not a major reform. On the contrary, it may raise false expectations and create uncertainty. The changes concerning the civil enforcement of competition law, however, are likely to bring about significant developments.
Consortia
Under the new provision in Article 4 par. 1 bis CartA, agreements and concerted practices relating to consortia that enable or strengthen effective competition are not deemed to be agreements affecting competition. This new provision is purely declaratory in nature: an agreement that neither has as its object nor effect the restriction of competition was already permissible under the existing Cartel Act.
The new provision is not a free pass for cooperation arrangements of any kind. The position remains as follows: if the members of a consortium could carry out a project on their own, and if the consortium primarily serves to reduce competitive pressure, the consortium will be assessed substantively under Article 5 CartA.
Changes to the assessment of agreements affecting competition
The first notable change is the new Article 5 par. 1 bis CartA. This provision is intended to correct the overly expansive case law relating to the statutory presumptions. Specifically, even in cases involving such presumptions – i.e. the so-called "hard" horizontal agreements, namely price, quantity, customer and territorial agreements, and vertical agreements, namely resale price maintenance and territorial foreclosure – the competition authorities will have to explain why, in the specific case, the conduct is capable of producing harmful effects and why the expected harmful effects should be considered significant.
As a result, the competition authorities may no longer infer significance as a matter of principle merely because a statutory presumption applies, as the Federal Supreme Court held in its Gaba judgment. How the formal abolition of the Gaba practice will operate in the application of the new law will only become apparent in a few years’ time. For the time being, the new Article 5 par. 1bis CartA will therefore primarily create uncertainty.
The definition of hard price-fixing agreements has also been revised (Article 5 par. 3 let. a CartA). In future, the elimination of effective competition will no longer be presumed in the case of “agreements on the direct or indirect fixing of prices”, but rather in the case of “agreements on the direct or indirect fixing of minimum prices, fixed prices or maximum purchasing prices”.
This does not, however, amount to a fundamental change of system. Parliament has clarified which types of price agreements it considers to be directly sanctionable. In doing so, it expressed its dissatisfaction with the expansive practice relating to the statutory presumptions. That dissatisfaction did not arise without reason. As the 1995 dispatch of the Federal Council stated, from a substantive perspective, "the statutory presumptions cover horizontal agreements on prices, quantities and market allocation. They are primarily aimed at so-called hard-core cartels, namely market-wide agreements by which competitors restrict competition among themselves". One member of Parliament expressly confirmed this and stated that, when direct sanctions were introduced in 2004, only the most serious cases were intended to be sanctioned directly, "and indeed under criminal-law principles. Now COMCO is extending this criminal-law provision in an impermissible manner. That is why we must act today."
How the new provision is ultimately to be understood will likewise only become clear in the future. Parliament’s instruction to the authorities applying the law is clear, however: the previous approach to the statutory presumptions must not continue.
Changes to the assessment of abuses of market power
In Article 7 CartA, Parliament inserted a provision that is similar to Article 5 par. 1bis CartA. Under the new Article 7 par. 3 CartA, whether conduct is abusive must always be assessed on a case-by-case basis, through an overall assessment based on experience and the specific circumstances of the market. This codifies the existing court practice in the CartA. The provision is therefore unlikely to have much practical relevance.
New compliance defense
Parliament adopted an important amendment regarding sanctions: compliance measures taken by an undertaking to prevent infringements of the CartA may now be taken into account as a mitigating factor when sanctions are imposed.
However, only compliance measures that are appropriate in light of the size and business activities of the undertaking, as well as the relevant industry, will be considered. The current draft ordinance further provides that compliance measures may only be taken into account if they led to the discovery of an infringement and either resulted in a report to COMCO or in the termination of the conduct before COMCO intervened. If an infringement is not detected, it is to be assumed that the compliance measures were not adequate.
Changes to merger control
In merger control, the legislature sought to avoid duplication. Under current law, concentrations must be notified if the undertakings concerned exceed certain turnover thresholds. In future, notification will no longer be required if all relevant product markets affected by the transaction are to be defined geographically as comprising Switzerland and at least the European Economic Area, and if the transaction is reviewed by the European Commission.
Market definition is one of the most difficult tasks in competition-law analysis. Since COMCO often does not make a definitive geographic market definition in practice, it is likely to be difficult for notifying undertakings to assess whether their transactions are exempt from the notification obligation. It is true that a request for advice could be submitted in advance to the Secretariat of COMCO. However, this would cost both time and money, meaning that in cases of doubt undertakings are likely to proceed directly with a notification. The practical relevance of this new provision is therefore questionable.
There is, however, a relevant change in the substantive assessment of concentrations. In future, COMCO will no longer be able to intervene only where the review shows that a dominant position is created or strengthened as a result of which effective competition may be eliminated. Instead, COMCO may already intervene where effective competition is significantly impeded as a result of the concentration.
According to the current draft of the amended Ordinance on the Control of Concentrations of Undertakings, this will be the case where the concentration is likely to lead to higher prices, a deterioration in the quality of goods or services, or a reduction in innovation efforts. With the introduction of the so-called "Significant Impediment to Effective Competition" test, or SIEC test, the threshold for intervention has clearly been lowered.
Changes to the opposition procedure
Where there is uncertainty, undertakings may submit a request for advice to the Secretariat of COMCO or notify conduct before implementing it. The latter is referred to as the opposition procedure. Its advantage was that the notified conduct could be carried out without risk of sanctions, unless the undertaking was informed within five months of notification that a preliminary investigation or an investigation had been opened, and the undertaking did not cease the conduct.
This period will now be reduced to two months, and the opening of a preliminary investigation will no longer be sufficient for the risk of sanctions to revive. In cases where there are insufficient indications to open a formal investigation, conduct should no longer be prevented by the latent threat of sanctions. However, the new rules do not preclude COMCO from finding, in a later investigation, that the conduct in question is unlawful and prohibiting it for the future. After the two-month period has expired, however, a direct sanction can no longer be imposed for the specific facts that were notified. This is likely to make the opposition procedure more attractive for undertakings.
Changes to civil antitrust litigation
The right to bring an action will now be extended to all persons affected in their economic interests by unlawful restraints of competition. Under current law, consumers and public contracting authorities in particular were unable to assert cartel damages in court. In addition, the limitation period will now be suspended during an investigation until a final and binding decision has been issued.
These are important changes aimed at strengthening the private enforcement of competition law. Nevertheless, cartel damages actions will remain difficult. The general rules of civil procedure and the substantive requirements for damages have not changed. Unlike the EU Damages Directive, Swiss law contains no statutory presumption that infringements of competition law cause harm. The claimant must prove all elements of the loss it has suffered. Again, unlike in some EU Member States, there are no rebuttable presumptions or empirical reference values regarding the amount of loss. In Switzerland, the amount of damages is determined by the court in accordance with the general rules of civil law and civil procedure. As a subsidiary matter, the court may estimate the loss, although the thresholds for a judicial estimation of damages are high. The claimant must also obtain the necessary evidence itself in accordance with the applicable rules of civil procedure.
At least the following remains possible – although this was already the case under current law: consumer organizations may bring claims under the general rules of civil law if consumers assign their claims to them, provided the organizations have not themselves suffered direct harm. It should also be possible to bundle individual claims, for example through a special-purpose vehicle.
Despite the continuing difficulties, the expansion of standing is likely to lead to more intensive civil enforcement and thereby fundamentally change the risk profile of competition-law infringements in Switzerland. In future, the risk of damages claims must be taken into account as a material risk in every competition-law compliance assessment. A possible relief mechanism has, however, been introduced for undertakings: if, following a decision by COMCO, an undertaking voluntarily pays damages, this may subsequently be taken into account as a mitigating factor when administrative sanctions are assessed.
Outlook
The new provisions will enter into force in the second half of 2027 at the earliest. Before then, various ordinances still need to be amended. We would be pleased to provide you with further information – including on those procedural and other changes not covered in this newsletter – and to assist you in implementing the amendments to the CartA.