WWW.LAWYER-MONTHLY.COM 19 nor their size is relevant regarding the determination of a relative market power. In addition, it is sufficient that the concerned practice as an effect on the Swiss market, without any quantitative appreciation of such effect. Sufficient and reasonable alternatives This condition must be analysed on a case-by-case basis and is certainly the one that is critical while evaluating the position of a franchisor. Indeed, at first sight, being the franchisor of a specific cosmetic brand or pastry chain does not prevent the franchisee to decide to terminate its existing relationship to become the franchisee of a competing franchisor. It seems however that such an alternative shall not be deemed reasonable in the sense of the law, considering in particular the specific franchise-related investments and the conversion costs. But it remains however that the cause of the dependence still relies in the decision of the dependent undertaking to enter into the contractual relationship, even if the alleged discrimination in the supply conditions lies with the supplier, in that case the franchisor. franchisee and franchisor are not deemed to be “undertakings”, but are part of the same group, the group benefits in principle from the so-called “group privilege” recognized by the Swiss federal Supreme Court in connection with the limitation of parallel imports. Further, the concept of relative market power differs from the concept of dominance in the sense that it is not related to the positioning of an undertaking on a specific market, but it applies to an individual and specific bilateral relationship between two undertakings. In other words, the same undertaking can be deemed to have a relative market towards one contractual partner, but not necessarily another one. This nuance is probably not relevant with regards to franchise networks as we can assume that the same rules shall apply to all the Swiss based franchisee of the same franchise. Thus, a potential analysis by the authority shall probably more focus on the network itself and its consequences in Switzerland rather than on each any bilateral relationship, on a case-by-case basis. It is worth noting that neither the market shares of the concerned undertakings In January 2022, a modification of the Cartel Act entered into force, in particular its article 7. Said modification introduces the concept of relative market power by prohibiting the abuse of such relative power. More specifically, a new lit. g) has been added to article 7,which deems it unlawful to restrict buyers from purchasing goods or services offered both in Switzerland and abroad at the market prices and conditions customary in the industry of the foreign country concerned. Concretely speaking, this allows a buyer based in Switzerland to force a purchaser based abroad to supply it at market prices and conditions that are applied in its own country, assuming the concerned goods or services are offered in both countries. It is worth noting that simultaneously, the Swiss parliament modified the Federal Act against unfair competition in order to introduce a prohibition of the so-called geo-blocking (article 3a I of the Act against Unfair Competition), mirroring the European Regulation (EU) 2018/302. At first sight, it seems obvious that a franchisor or a master franchisor has a relative market power deriving from the franchise agreement towards its franchisees and master franchisees. Assuming the first one is based in a foreign country where the second is in Switzerland, will article 7 of the Cartel Art force it to grant to its Swiss based counterparts the conditions customary abroad? Relative market power Dependence According to the new article 4 § 2bis, a company with relative market power is one on which other companies are dependent for the supply of or demand for a good or service, because they do not have sufficient and reasonable alternatives. In principle, one must assume that this situation is exactly the case in a franchise relationship, assuming however that franchisor and franchisee are economically independent and shall participate autonomously to the economical process. Indeed, where
RkJQdWJsaXNoZXIy Mjk3Mzkz