What are the key challenges when litigating on antitrust cases? A cartel proceeding typically begins with a ‘dawn raid’ by the Swiss Competition Commission (COMCO) on companies that may potentially participate in an unlawful agreement or are allegedly abusing their dominant position. It is therefore necessary to be particularly reactive and, ideally, already assist the companies concerned in their premises during the dawn raid. The next step is to quickly understand what is at stake in the case. This means understanding the economic functioning of the relevant market in industrial sectors that are sometimes completely new to me – but this is also what makes my job so exciting. The relatively long duration of the proceedings – several years if all remedies are exhausted – and the relatively complex legal issues raised by these cases represent further challenges. What are the most common violations of competition law in Switzerland? The most common antitrust violations fall into two categories: 1) agreements that significantly restrict or eliminate competition on a specific market for goods or services and 2) abusive conduct of dominant undertakings. In the first category, it is common to find illicit price-fixing agreements, whether on a horizontal level (i.e. between competitors) or on a vertical level (i.e. between a manufacturer and its distributors or between a wholesaler and retailers). It is also common to find agreements in the context of public bidding (‘bid rigging’). For instance, companies may agree not to participate in a certain bidding procedure, or define a rotation system for their participation in such procedures, or agree on the prices and conditions to be offered. Defending Swiss Companies in Antitrust Cases Any company that fails to implement proper safeguards may become the subject of an antitrust investigation. In Switzerland, such probes are undertaken by the COMCO, and firms would be welladvised to assess their antitrust risks before they become necessary. Dr Sébastien Gobat of Troller Hitz Troller shares his experiences with us in this article, diving deeper into the process involved in litigating cartel proceedings and other antitrust matters. Expert Insight EXPERT INSIGHT 55
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