Autor: Marino Baldi

"Zweimal hü und zweimal hott" beim Schweizer Kartellgericht

One of the most disputed question relating to Article 5 SCA on restrictive agreements concerns the test that triggers off the application of the provision. Under Article 101 TFEU the respective test is about whether a particular agreement has an "appreciable effect" on competition ("spürbare Wirkung"). The idea of the criterion is to identify agreements that have only a "minor effect" on competition and need therefore not be further investigated. Concerning Swiss law, a number of commentators have argued that the criterion about significantly restricting competition stands for a more ambitious test. i.e. a test requiring a decision on the "appropriateness" of a restraint on competition in the sense of the American Rule of Reason. Within only two years, the Swiss Administrative Court of Justice has decided twice in one way and twice in the other.