Innovations in Cartel Law
On 19 December 2025, following lengthy debate, the Swiss Parliament adopted various amendments to the Cartel Act. One important aspect is the new compliance defence. Its entry into force, however, is still some way off. Nevertheless, it is worth taking a look ahead.
Key Takeaways
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Compliance can pay off – but the hurdles are high. Even today, effective compliance programmes can, in principle, lead to a reduction in sanctions.
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A compliance programme must be more than “compliance on paper”. Training and instructions alone are not sufficient. What is required are effective monitoring, control and enforcement mechanisms capable of identifying competition law risks and preventing or putting an end to infringements.
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Even though the new compliance defence risks becoming more formalistic, compliance systems should already be designed today with the future legal framework in mind. Companies should not only focus on the practical effectiveness of their compliance programme, but also ensure that its design and implementation meet the requirements for a subsequent reduction in sanctions and that its implementation is sufficiently documented.
What is it about?
For just over 20 years, the Swiss Competition Commission (COMCO) has been able to impose direct sanctions on companies participating in agreements affecting competition that fall within the presumptions under Article 5(3) and (4) of the Cartel Act (CartA), or that abuse a dominant position (Article 7 CartA).
Even under the existing regime, it has in principle been possible to take a compliance programme into account as a factor mitigating sanctions. Article 6 of the Ordinance on Sanctions imposed for Unlawful Restraints of Competition (Cartel Act Sanctions Ordinance; CASO) provides for a reduction in sanctions where mitigating circumstances exist. Compliance programmes are not, however, expressly mentioned; the requirements for taking them into account have therefore been developed through administrative and judicial practice. To date, there has been no express provision or binding catalogue of criteria for assessing compliance programmes.
Last December, the legislator amended Article 49a(1) CartA to provide that “measures taken by the company to prevent infringements of this Act that are appropriate to its size, business activities and industry” may be taken into account as a factor mitigating sanctions. For the first time, therefore, the Act expressly provides for a compliance defence.
Current Regulation
The current “regime” derives primarily from case law. The courts have made clear that a compliance programme should, in particular, be taken into account as a factor mitigating sanctions if it was already in place at the time of the infringement, thereby enabling the company to demonstrate that the infringement occurred contrary to its express will. In addition to this temporal requirement, a compliance programme must not consist merely of instructions, circulated rules and training, but must also include effective monitoring, control and enforcement mechanisms.
The following criteria, among others, can be identified from the case law:
- A compliance programme must already have been in place at the time of the competition law infringement in order to be taken into account as a factor mitigating sanctions following an infringement. Companies are therefore well advised to introduce compliance programmes at an early stage and establish them on a lasting basis.
- Compliance does not end with imparting knowledge of the fundamental provisions of the Swiss competition law framework. What is also required is an embedded awareness that potentially problematic conduct under competition law must be identified and actively reported to the appropriate functions within the company. Mere instructions, rules and training are therefore insufficient; effective monitoring, control and enforcement mechanisms are also required.
- The compliance programme must be suitable for effectively promoting compliance with competition law and preventing competition law infringements. It must therefore be designed and implemented in such a way that potentially problematic conduct under competition law can be identified and corresponding infringements prevented or brought to an end. If potentially problematic conduct under competition law remains undetected despite the compliance programme, this may call into question the programme’s suitability as required by the case law.
- The competition law infringement must have occurred contrary to the company’s express will. Taking the compliance programme into account as a factor mitigating sanctions presupposes that the company can use it to demonstrate that it intended to prevent the infringement. If, by contrast, the specific conduct at issue was reviewed by the competent governing bodies and considered compliant with competition law, or was even approved by them, it is difficult to argue that the infringement occurred contrary to the company’s express will.
Outlook on the new regime
Last year’s reform of the Cartel Act expressly enshrined the compliance defence in legislation for the first time. The requirements for its application are now to be specified in the CASO. To this end, the Federal Council is currently revising the CASO. The consultation draft follows the existing case law in key respects, but in some areas goes considerably further.
The proposal provides for a catalogue-based assessment framework – “tick the box” – with specific requirements concerning risk analysis, monitoring, reporting mechanisms, responsibilities and the role of governing bodies. Notably, the draft does not merely codify existing practice. Whereas the case law has so far focused in particular on the seriousness and suitability of the compliance programme, the future regime is intended to involve a more formalised assessment of whether certain organisational and factual requirements are met.
According to the consultation draft, the compliance programme must specifically address the company’s particular competition law risks, identify and assess those risks, and provide for appropriate measures to reduce them. A generic compliance programme will therefore not suffice. For smaller companies in particular, such a formalised risk analysis may involve considerable additional effort.
A further challenge for SMEs is likely to be the requirement that responsibility for implementing the compliance programme must be assigned to a person who is functionally, organisationally and personally independent. The Federal Council acknowledges that this may constitute a significant hurdle for SMEs and is prepared to accept that a member of the executive management may also be responsible for the compliance programme. However, care must be taken to ensure that the person responsible for compliance does not simultaneously perform a function in which they would effectively be monitoring themselves.
The consultation draft goes particularly far with regard to the role of governing bodies. A reduction in sanctions on the basis of the compliance programme is to be excluded if a person holding the status of a governing body participated in the infringement or was aware of it. At least in its categorical form, this goes beyond the existing, more case-specific assessment. Knowledge on the part of a single employee who holds the status of a governing body could therefore make it impossible to rely on an otherwise effective compliance programme.
Whether and in what form these criteria will be incorporated into the final CASO remains to be seen following the conclusion of the consultation process.
Assessment of the current trend and outlook
The hurdles for a successful compliance defence are already high. As far as can be ascertained, no company has yet succeeded in obtaining a reduction in sanctions by relying on its compliance programme. Although COMCO and the courts have for years recognised that an effective compliance programme can, in principle, be taken into account as a factor mitigating sanctions, such a reduction has consistently been refused in the published cases because, for example, the programme was introduced only after the infringement, was limited to inadequate measures, or was not suitable for identifying and preventing the specific competition law infringement.
Two main conclusions can be drawn from existing practice and the consultation draft:
- The high requirements for a successful compliance defence increase the importance of designing a compliance programme carefully and at an early stage. With the compliance defence now expressly enshrined in legislation, an effective compliance system takes on additional significance. Companies are therefore well advised to review their existing compliance structures now to determine whether they meet the requirements established by the case law and the potentially stricter requirements of the revised CASO.
- Companies wishing to preserve the possibility of relying on a compliance defence must not design their compliance programme solely with the effective prevention of competition law infringements in mind. When designing their compliance programme, they must also ensure from the outset that the specific requirements for a subsequent reduction in sanctions are met. The more schematic and catalogue-based the compliance defence becomes in the final version of the CASO, the greater the risk that an effective compliance programme will not be taken into account as a factor mitigating sanctions simply because individual formal requirements have not been met.
It is currently expected that the amended CartA and the corresponding amendments in the CASO will enter into force mid-2027. The Competition Law team of Prager Dreifuss Ltd. is at your disposal and will support you in the development and implementation of an CASO-compliant compliance programme.