Swiss Federal Administrative Court annuls sanction against SFS unimarket AG

In its leading judgment of September 23, the Swiss Federal Administrative Court annulled a fine issued by the Swiss Competition Commission against SFS unimarket AG (“SFS”). The judgment followed SFS’s reasoning and held that SFS did neither participate in horizontal nor in vertical price fixing. This is the first court decision in Switzerland on information exchange. The court made it clear that any information exchanged can only be anti-competitive if it is actually used for influencing the companies’ behavior. Hence, there is always a causality nexus necessary between the information received and the actual market behavior. The judgment is also important for future decisions as it sets a high standard on the level of proof the Competition Commission has to establish for sanctioning a specific behavior. Finally, the court confirmed SFS’s view that an immunity or leniency application may be limited to describing facts. In particular, no admission of guilt is required. The judgment is final, as the Swiss Competition Commission decided not to appel to the Swiss Federal Supreme Court.

Lenz & Staehelin (Marcel Meinhardt, Astrid Waser and Felix Prümmer) advised SFS.