Finally, the programme should be monitored at regular intervals and corrective measures taken if necessary. How has the extension of the control of abusive conduct to companies with relative market power impacted the nature of investigations and disputes in Swiss competition law? The new regulation on companies with relative market power that came into force on 1 January 2022 has led to some notifications to the COMCO. The impact of this new regulation is not yet clear and it is too early to assess its effectiveness. However, from a practitioner’s point of view, it appears that many companies that may be victims of abuse by suppliers with relative market power are reluctant to complain to the COMCO, as this could jeopardise business relationships that may have existed for many years with their suppliers and are essential for the companies concerned. In this respect, it can be noted that the COMCO has just opened an investigation against the French publishing group Madrigall. In this context, it will examine whether Madrigall is unlawfully limiting the possibility for Swiss book retailers to buy books in France at better conditions. This investigation may likely result in a first leading decision on the new provisions on relative market power. How are you able to assist your clients with mergers that are investigated by the competition commission on the grounds that the merger creates or strengthens a dominant position? In such a situation, my task will be to assist the companies to obtain merger clearance from the COMCO. In concrete terms, this means preparing a merger notification and accompanying the companies concerned through the notification procedure, representing them before the COMCO. Ideally, when the timing of the merger allows it, it is common practice to submit a pre-notification to the COMCO so that the latter can assess whether the draft notification is complete. This allows the COMCO to anticipate the formal notification and to collect the necessary data in good time to assess the case. As our office is located in Berne - like the COMCO - this proximity is an advantage for the interaction with this authority. EXPERT INSIGHT 57 About Dr Sébastien Gobat Dr Sébastien Gobat is a partner at Troller Hitz Troller in Berne, Switzerland. He is specialised in antitrust, unfair competition and the various areas of intellectual property law. He also has proven expertise in distribution law (agency, license and franchising agreements) and insolvency law. He regularly advises companies in the field of antitrust law and represents them before the Swiss Competition Commission (COMCO) in the context of investigations or merger notifications. Troller Hitz Troller Troller Hitz Troller is a renowned Swiss law firm. Established in 1941 with offices in Berne and Lucerne, it offers services in the fields of intellectual property (trademark, patent, design and copyright law), antitrust and unfair competition law, as well as contract and business law. Contact Dr Sébastien Gobat Partner, Troller Hitz Troller Münstergasse 38, CH-3011 Berne, Switzerland Tel: +41 31 328 36 36 E: gobat@trollerlaw.ch www.trollerlaw.ch
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