Key takeaways

• Merger control: The current qualified market dominance test will be replaced by the Significant Impediment to Effective Competition (SIEC) test. This change lowers the threshold for prohibiting a transaction or requesting commitments.
• Cross-border transactions: The revision introduces an exemption from the Swiss merger filing requirement for certain cross-border deals that are reviewed by the European Commission, provided the affected markets are geographically defined to include both Switzerland and at least the European Economic Area (EEA).
• Hardcore agreements: The revised rules adopt an effects-based approach, allowing companies to argue that their hardcore agreements have no significant quantitative impact on competition. Also, certain forms of price coordination such as gross price lists no longer qualify as hardcore restrictions.
• Abuse of dominance: The new rules confirm that quantitative effects on competition are required to establish abuse.
• Compliance defense: The revision introduces a compliance defense. This will oblige the Swiss authorities to reduce fines if an appropriate compliance management system is in place.
• Antitrust damage claims: The revision is expected to lower the hurdles for bringing antitrust damage claims.

Merger control

Introducing the SIEC test

Under the current law, the Swiss Competition Commission (“ComCo”) assesses transactions based on a qualified dominance test (the so-called “dominance plus” test). ComCo may prohibit a transaction only if it creates or strengthens a dominant position and such position eliminates effective competition.

The revised Cartel Act introduces the SIEC test, allowing ComCo to intervene in transactions that significantly impede effective competition, regardless of whether a dominant position is established. This new approach places greater emphasis on assessing efficiency gains, requiring companies to provide clear and credible evidence of consumer benefits.

By implementing the SIEC test, the Cartel Act becomes more closely aligned with EU competition law and better suited to today’s market realities. The change lowers the threshold for intervention and is likely to increase the number of in-depth reviews by ComCo. In addition, it enables ComCo to weigh both the positive and negative effects of transactions, leading to more balanced decisions.

New exemption from notification duty for cross-border mergers

To date, any concentration meeting the turnover thresholds set out in Article 9(1) CartA must be notified to ComCo.

Under Article 9(1bis) of the revised CartA, the notification requirements have been refined to reduce administrative burdens for international companies. While transactions that meet the established turnover thresholds must still generally be notified, the new law introduces a targeted exemption for certain cross-border mergers. Specifically, if (i) the relevant geographic markets include Switzerland and at least the European Economic Area (EEA), and (ii) the concentration is reviewed by the European Commission, notification to ComCo is no longer required.

This adjustment brings Swiss merger control closer to EU practice and aims to simplify procedures for cross-border transactions. However, its practical impact may be limited. In many cases, Swiss merger notifications have already relied on filings made to the European Commission, and the definition of relevant geographic markets often remains uncertain. As a result, parties may still choose to notify ComCo in cases of doubt to avoid a violation of the filing obligation.

Introducing an effects-based approach to hardcore restrictions

Under the current law, following the 2016 Gaba decision of the Federal Supreme Court, horizontal and vertical hardcore restrictions of competition (Articles 5(3) and 5(4) CartA) are deemed per se to significantly restrict effective competition, regardless of their actual quantitative effects. Combined with the very narrow scope for efficiency justifications, this has resulted in a de facto presumption of illegality for hardcore restrictions.

Under the revised law, the assessment of hardcore restrictions shifts to an effects-based approach. Pursuant to the new Article 5(1bis) CartA, ComCo will need to consider quantitative factors when determining whether such restrictions significantly restrict competition. This may include an analysis of market share, market position, and barriers to entry.

It remains to be seen how ComCo and the Swiss courts will apply this amendment in practice. For compliance purposes, it can be assumed that the Swiss approach will move closer to EU developments, where the European Court of Justice (ECJ) requires an assessment of the legal and economic context even for restrictions “by object” (ECJ, Case C‑211/22 P – Super Bock Bebidas).

Narrowing the scope of hardcore price agreements

Under the current Cartel Act, not only price cartels but also broader forms of price coordination – such as using gross price lists – qualify as hardcore restrictions and, if the other conditions are met, are subject to direct sanctions (i.e., fines). Article 5(3) of the revised Cartel Act significantly narrows this scope by limiting it to agreements on minimum or fixed prices and maximum prices on the demand side.

The revised rules introduce a more targeted approach, excluding indirect supply-side price arrangements such as gross price lists from the definition of hardcore violations and removing them from the risk of direct sanctions.

Clarifying the criteria of abuse of dominance

Market dominance itself remains lawful under Swiss competition law. However, the abuse of such a position continues to be subject to direct sanctions (Articles 7 and 49a(1) CartA). The revised Cartel Act clarifies that ComCo must assess both qualitative and quantitative effects on a case-by-case basis when determining whether a dominant position has been abused (Article 7(3) of the revised CartA).

This clarification reflects recent developments in Swiss case law. Notably, in January 2025, the Federal Supreme Court held that conduct qualifies as abusive only if it is “effectively potentially suitable” to restrict effective competition (Case 2C_244/2022 – Vifor/HCI Solutions).

The reform enhances legal certainty for companies with strong market positions by focusing enforcement on actual anti-competitive effects. For compliance purposes, it can be assumed that the revised Swiss rules will not lead to significant changes in the Swiss approach to abuses of dominance and that Swiss practice will remain broadly aligned with European law.

Amending the procedural rules

The revised Cartel Act introduces several procedural amendments aimed at enhancing efficiency and legal certainty in competition law enforcement:

• Individual exemption: One key change concerns the Swiss-specific mechanism of individual exemption, which allows companies to notify planned conduct to ComCo to obtain certainty regarding compliance with the Cartel Act. Under the current law, the threat of direct sanctions ceases if the authorities fail to open a preliminary or formal investigation within five months of notification. Under the revised law, this period is shortened: the threat of direct sanctions ends if the authorities fail to open a formal investigation within two months following notification (Article 49a(4) revised CartA).
• Time frames for proceedings: To accelerate administrative procedures, the revised law introduces statutory time frames for competition authorities and appeal courts, with an obligation to comply or explain any delays (Article 44a revised CartA). The time limits are:
  • Preliminary investigation: 12 months
  • Formal investigation: 30 months
  • Appeals before the first instance court: 18 months (unlawful restraints), three months (mergers), four months (procedural rulings)
  • Appeals before the Federal Supreme Court: 12 months (unlawful restraints and mergers), four months (procedural rulings)
• Compliance defense: The revised law introduces a compliance defense, requiring Swiss authorities to reduce fines if an appropriate compliance management system is in place (Article 49a(4) revised CartA).
• Cost compensation: Parties may claim compensation for representation costs incurred before competition authorities if a formal investigation is discontinued without consequences (Article 53b revised CartA).

Strengthening antitrust damage claims

The revised Cartel Act significantly expands access to antitrust damage claims for competition law infringements. Key amendments include:

• Standing: End customers, including consumers and public authorities, now have standing to bring antitrust damage claims before Swiss courts (Article 12(1) revised CartA).
• Limitation period: The limitation period for such claims is extended to five years and is suspended while a ComCo investigation is ongoing (Article 12a(1) revised CartA).
• Voluntary compensation: Companies that voluntarily compensate victims of anti-competitive conduct may benefit from reduced administrative sanctions, such as fines (Article 49a(5) revised CartA).