Introduction of Relative Market Power

Abstract

In Switzerland, as of January 1, 2022, the antitrust prohibition of abusive conduct will also apply to companies with relative market power. Moreover, discriminatory conduct against Swiss customers in online commerce will constitute an unfair trading practice.

On September 17, 2021, the Swiss Government decided that two important legislative changes for companies will enter into force on January 1, 2022:

Introduction of Relative Market Power

As of January 1, 2022, the prohibition of abusive conduct under antitrust law will no longer apply only to companies holding a dominant position, but also to companies with relative market power. A company is considered to have relative market power if another company does not have sufficient and reasonable alternative options and therefore is dependent on the former company.

This constitutes a significant expansion of the antitrust concept of abusive conduct and will affect both Swiss and foreign companies with operations in Switzerland. Under the new law, dependent companies in principle need to be treated equally and no worse than non-dependent companies with regard to prices, discounts as well as other terms and conditions.

Buyers in Switzerland will moreover be entitled, vis-à-vis companies holding a dominant position and companies with relative market power, to purchase goods and services from outside of Switzerland at the prices and conditions prevailing there.

Ban on Geoblocking

In addition, as of January 1, 2022, the following will constitute unfair trading practices in online and distance commerce:

  • discriminating against Swiss customers with regard to prices or payment terms,
  • restricting access for Swiss customers to online platforms, or
  • re-directing Swiss customers to another version of an online platform without their consent.

If you have any queries related to this Bulletin, please refer to your contact person at Homburger or to: