- within Antitrust/Competition Law, Environment and Privacy topic(s)
I. Introduction
The latest reformof the Swiss Federal Cartel Act (CartA) was approved on 19 December 2025.1 This signif- icant reform enshrines the latest case law of the FederalSupreme Court of Switzerland (FSCS)on the conditions for assessing the abusive behaviour by market-dominantundertakings;2 strengthens the civil aspects of Swiss competition law for consumers; and brings several key amendments to the administrative procedural law applicable to competition law inves- tigation.
In particular, the 19 December 2025 reform brought two significant changes that are discussed in this report. First, it modifies the methodology for assessing how an agreement between undertakings affects competition. Second, it modernises themerger control procedure through the adoption of the SIEC test, replacing the previous qualified market dominance test. However, these two changes, give rise to a profound paradox. While the latter aligns Swiss lawmore closely with EU competition law, the former may produce the opposite effect.
To highlight this paradox, this report first outlines the historical framework governing the assessment of agreements between undertakings in Swiss com- petition law (II.). As will be shown, this assessment
has been characterised by constant shifts, which con- tinue to cause difficulty – even with the current reform – to find the right equilibrium (III.). As for the SIEC test (IV.), although it may enhance efficiency in certain cases, it also raises unresolved issues concerning the specific control of the Swiss market.
II. Agreements Affecting Competition
1. Historical Perspective
The CartA stems from Article 96(1) of the Federal Constitutionof theSwissConfederation (FCSC). This provision states that ‘[t]he [Swiss] Confederation shall legislate against the social and economic conse- quences of cartels and other restraints on competi- tion’. As recalled by the FSCS, Article 96(1) FCSC im- plies that only the economically or socially harmful consequences of restraints on competition are to be combated. Unlike EU law, the conception of Swiss competition law does not allow for a general prohi- bition of agreements restricting competition.3
This approach was specifically adopted in the two previous versions of the CartA. The first 1962 CartA used the ‘balance method’ (Saldomethode; méthode du solde). Thismethod assessed all the economic and social consequences of a restriction on competition by weighing up their negative and positive effects. If thenegative effects outweighed thepositive ones, the restriction had harmful economic and social conse- quences. In this case, the Competition authority could issue recommendations to the undertakings concerned but could not prohibit a given behaviour. For example, tobacco resellers could agree on ciga- rette prices as these would rise and smokers would smoke less, thereby contributing to public health.4
Twenty-three years later, the 1985 CartA repealed the 1962 CartA. The 1985 version kept the use of the ‘balance method’,butraisedthethresholdforconsidering the validity of certain restrictive agreements.5 If certain types of hardcore agreementsweretoelim inateeffectivecompetition,theireffectswereconsid ered harmful, unless an overriding public interest made them indispensable.6 In applying this higher threshold, the Cartel Commission thus ruled that an agreement on the price of cement to promote its transport by rail was not indispensable on grounds of environmental protection.7
The current CartA was adopted in 1995 following the 1992 vote of the Swiss people and the cantons re-fusing Switzerland’s accession to the EEA. The CartA established a paradigm shift and brought Swiss competition law closer to EULaw. It repealed the ‘bal- ance method’ and refocused the objective of the law on protecting competition as an institution.8 An agreement restricting competition could thus only be justified on grounds of economic efficiency. Only the Swiss federal government may exceptionally au-thorise an unlawful agreement necessary to safe-guard an overriding public interest.9
2. The Assessment of Agreements Impacting Competition
Article 5(1) CartA states that:
[a]greements that significantly impact competi- tion in a market for certain goods or services and cannot be justified on grounds of economic effi- ciency, as well as agreements that lead to the elim- ination of effective competition, are unlawful.
This general provision distinguishes agreements significantly impacting competition and which cannot be justified from agreements eliminating effective competition.
For agreements impacting competition, the FSCS established that the ‘significant impact’ criterion is based on the overall assessment of qualitative and quantitative aspects understood as communicating vessels.10 The qualitative aspects focus on the impor- tance of the competition parameter affected by the agreement on the relevant market.11 The quantita- tiveaspects areassessedaccording to theparties'mar- ket shares and internal, external, current, and poten- tial competition on the relevant market.12
Aside agreements significantly impacting competition, the CartA contains presumptions that certain agreements eliminate effective competition. These
presumptions are provided by Article 5(3) and (4) CartA. Article 5(3) CartA covers horizontal agree- ments that:
(a) […] directly or indirectly fix prices; […] (b) restrict the quantities of goods or services to be produced, purchased or supplied; […] (c) allocate markets geographically or allocate trading partners.
Article 5(4) CartA concerns vertical agreements that:
[…] impose a minimum or fixed selling price, as well as distribution agreements allocating territo- ries […] when sales by other authorised suppliers are excluded.
The presumptions that the enumerated conducts eliminate (all) competition are quite easy to overturn. Indeed, proof that a small amount of residual competition exists on the relevant markets is sufficient in that regard.13 Once the presumption has been rebutted, the lawfulness of an agreement is assessed according to its significant impact on competition as stated by Article 5(1) CartA.
If an agreement is found to be contrary to Article 5(1) CartA, it may be justified based on economic ef- ficiency grounds exhaustively provided for in Arti- cle 5(2) CartA. Since 1 April 2004, agreements pro- vided for in Article 5(3) or (4) CartA and found to be unlawful can be directly sanctioned based on Article 49a CartA.
3. The Gaba Case
The assessment of agreements provided for in Arti- cle 5(3) or (4) CartA was reshaped by the 2016 landmark decision in the Gaba case.14 The Swiss company Gaba entered into an agreement with Austrian companyGebrotorestrict the re-export of dental hy giene products to Switzerland. This agreement con stituted absolute territorial protection falling under Article 5(4) CartA. The Swiss National Competition Authority (ComCo) sanctioned Gaba.15 Gaba ap pealed to the Federal Administrative Court of Switzerland and subsequently to the FSCS.
Footnotes
1. Swiss Federal Gazette (2026), 18 ff.
2. Judgment of the Federal Supreme Court of Switzerland (FSCS) Vifor Pharma/HCI Solutions [2025] 2C_244/2022.
3. Official Compilation of the FSCS 135 II 60 para 3.1.1.
4. Publication by the Swiss Cartel Commission (1976), 215 ff.
5. Swiss Federal Gazette, Message concerning the Federal Act on Cartels and Other Restrictions on Competition (1995) I 472, 506.
6. CartA 1985, 29(3).
7. Publication by the Swiss Cartel Commission and the Price Super- visor (1993), 5 14 ff.
8. CartA, 1.
9. CartA, 8.
10. Official Compilation of the FSCS 143 II 297 para 5.2.2.
11. Official Compilation of the FSCS 129 II 18 para 5.2.1.
12. Ibid.
13. Judgment of the Federal Administrative Court of Switzerland Implenia (Ticino) [2010] B-420/2008, para 7.
14. Official Compilation of the FSCS 143 II 297.
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