Another question is whether it is necessary for the dependent undertaking to demonstrate that it effectively tried to develop alternative sourcing channel. As said above the case-law that prohibits restrictions to parallel trade is quite strict in Switzerland and one could expect the franchisee to have explored such channels. That being said, it has to be noted that nothing in the law set forth such a condition. Further, parallel trade will never allow a purchaser in Switzerland to acquire goods or services directly from the supplier at conditions that are customary abroad, as it will necessarily have to deal with an intermediary. The buying power? Certain markets in Switzerland are characterized by the presence of very strong buyers or importers. In other words, it could be very difficult for suppliers abroad to decide not to deal with those counterparts. Would such a situation have an impact on the analysis of the alleged abuse of a relative market power? The law does not mention the potential counter-power of the dependent undertaking that should be taken into consideration while applying the provisions on the relative market power. Considering the fact that a strong buying power can lead to certain obligations to contract under the rules prohibiting the abuse of a dominant position, one must assume that a balanced allocation of market powers on both sides might exclude the concept of dependence of one undertaking towards the other. And the dependence is one of the characteristics of the relationship that is envisaged by the new provision. There would be a tension between a strong market power, in general and a relative market power in particular that certainly be dealt with on a case-bycase basis, taking into consideration the criteria set forth by Article 7 Cartel Act regarding the abuse of dominance. In such case, this should be alleged and demonstrated as a defence by the undertaking that is deemed to abuse its relative power, in our case the Franchisor. With the modification of the law, apart from attempting to fight against the expansiveness island mentioned above, the law maker is clearly targeting an unbalanced allocation of powers between the parties. This means that such a defence should be very strictly assessed, notwithstanding the fact that it would, as a matter of principle, depends on the analysis of the position of the buyer on the market in general and not only in its bilateral relationship with its counterpart. From the perspective of the franchisor, the analysis of the respective market powers should not be limited to the situation on the Swiss market, as the franchisor should be deemed to be the concerned undertaking. And from the perspective of the franchisee, it is certainly utmost relevant whether it is the sole franchisee on the Swiss market, or not. The decision to become a franchisee In principle, no business is forced to become a franchisee. According to the message of the Federal Council in support of the proposed modification of the law, there can be no dependence when a company has put itself in a bind. To put it differently, the law should not support or protect those who decide to take unreasonable entrepreneurial risks considering a disproportion between the commercial risks and opportunities. This is in particular the case of those franchisee which decide for instance to establish a shop in a border area, and which is most of their newly acquired clientele eventually deciding to cross the border to acquire the same product at a lower price… 20 LAWYER MONTHLY JUNE 2024
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