Competition agreements, abuse of market power, merger control, and more: what is changing and what is staying the same.

The partial revision of the Cartel Act (CartA) secured parliamentary approval on December 4, 2025. After several rounds of debate and proposed amendments in both chambers, the final points of discussion have been resolved. Until recently, the question remained open as to whether quantitative circumstances should also be taken into account alongside qualitative circumstances in order to determine whether a competition agreement is subject to sanctions.

The partial revision brings Swiss antitrust law into line with international standards, increases the efficiency of competition supervision, and provides companies with greater legal certainty. The introduction of the Significant Impediment to Effective Competition (SIEC) test aligns Swiss merger control with European merger control. In addition, civil antitrust law is strengthened and the procedural rights of companies and consumers are expanded.

The Cartel Act has been the basis for ensuring effective competition in Switzerland since 1995. After attempts to reform the Act failed in 2012, the Federal Council started afresh in November 2021, publishing a preliminary draft and opening a public consultation process. The dispatch was adopted by the Swiss Federal Council in May 2023 and introduced into Parliament. The dispatch was debated at length in the National Council and the Council of States in June 2024. Due to various deviations and new proposals, the differences were resolved in the fall and winter sessions of 2025.

The final vote in parliament is pending, but is likely to remain uncontested. The partial revision will commence in 2027 at the earliest.

1. Effects-based Assessment Under Articles 5 and 7

One of the most contentious questions of Swiss competition law reform has finally been decided. Agreements containing hardcore restrictions of competition and potentially abusive conduct will now always undergo an effects-based assessment. In each case, the qualitative and quantitative aspects of the agreement must be considered.

1.1 Assessment of Potentially Anticompetitive Agreements

Not only the nature, but also the effect of a restriction on competition will be decisive in every assessment under the amended Art 5(1^bis) of the CartA. The Cartel Act currently distinguishes between two types of competition agreements:

• In the case of agreements with hardcore restrictions, the law presumes the elimination of effective competition (Article 5(3) and (4) CartA). These include price-fixing, quantity-restricting, and geographic market-allocating agreements between competitors, as well as agreements between companies at different levels of the supply chain that impose minimum or fixed prices or provide for an absolute territorial protection. If a company fails to refute this legal presumption and justify the agreement on grounds of economic efficiency, it faces a sanction of up to 10% of its annual turnover (Article 49a(1) CartA).
• All other competition agreements must be examined to determine whether they significantly restrict effective competition. The assessment of whether the restriction is «significant» requires a consideration of the kind of restriction and its effect on competition. These agreements are not directly subject to sanctions but may be prohibited in the future. If a company violates this prohibition, it faces a sanction (Article 49a(1) CartA).

The partial revision increases the requirements for establishing a hardcore anticompetitive agreement. In future, an agreement will only be deemed «hardcore» if it is capable of impairing effective competition in the specific case. Qualitative criteria alone, such as empirical studies on the effect of comparable agreements, will be insufficient. The quantitative effects of the agreements must be examined. This could include having regard to a company’s market share and market position, as well as existing barriers to entry to a market.

This legislative adjustment towards an effects-based approach is a direct response to the Federal Supreme Court ruling in the Gaba case (BGE 143 II 297). In 2016, the Federal Supreme Court ruled that certain agreements listed in Article 5(3) and (4) CartA, by their very nature, significantly restricted competition. It was no longer necessary to prove their economic harmfulness on a case-by-case basis using quantitative criteria. The impetus for the change came from a motion by former Council of States member Olivier Français, which was included in the partial revision.

This reform aligns Swiss law with recent developments in the EU: the European Court of Justice (ECJ) also requires an assessment of the legal and economic context in the case of so-called targeted competition agreements (ECJ of June 29, 2023, Case C-211/22 P – Super Bock Bebidas, previously ECJ, Case C-307/18 of January 30, 2020 – Generics (UK)).

1.2 Assessment of Potentially Abusive Conduct

Market dominance is not per se prohibited under Swiss competition law, but the abuse of a dominant market position can be sanctioned (Articles 7 and 49a(1) CartA). In order to determine whether a dominant position has been abused, the Competition Commission (COMCO) must, pursuant to Article 7(3) of the revised Cartel Act, also examine qualitative elements and quantitative effects.

This reform was also made against a background of evolving Supreme Court jurisprudence. In January 2025, the Federal Supreme Court held that abuse of a dominant market position only exists if, in individual cases, conduct is «effectively potentially capable» of impairing effective competition (FSC 2C_244/2022 of January 23, 2025 – Vifor/HCI Solutions). Three years earlier, the Federal Supreme Court had stated that an abstract threat to competition could be sufficient to assume abuse of a dominant market position (FSC 2C_596/2019 of November 2, 2019 – SIX/DCC). The legislative clarification that the abusiveness of conduct must be assessed on a case-by-case basis and on the basis of quantitative and qualitative factors therefore reflects these developments.

2. Change regarding agreements on gross prices on the supply side

Article 5 of the CartA will be amended so that only agreements on minimum or fixed prices and maximum prices on the demand side fall under the presumption in Article 5(3) of the CartA. An indirect supply-side price agreement, for example via gross price lists, will therefore no longer be considered a agreement with hardcore restrictions, but will be subject to a case-by-case assessment under Article 5(1) CartA.

3. Modernization of Merger Control

Certain planned concentrations must be approved by COMCO before they can be implemented. A notification requirement applies if the companies involved have a worldwide turnover of CHF 2 billion or a total turnover of at least CHF 500 million in Switzerland and (in both cases) at least two of the companies involved have a turnover of at least CHF 100 million each in Switzerland (Article 9(1) CartA). A notification obligation also exists if a company involved in the merger has been found (by a final decision in proceedings under the Cartel Act) to have a dominant position in a specific market in Switzerland and the merger affects that market or a market upstream or downstream of it or a neighboring market (Article 9(4) CartA).

The core element of the reform to the Cartel Act concerning merger control is the introduction of a new substantive assessment standard: mergers will now be assessed on the basis of the SIEC test. In addition, certain transactions that are subject to international notification requirements will in future be subject to simplified Swiss merger control notification procedures.

3.1 SIEC Test Instead of Qualified Market Dominance Test

When reviewing a notifiable concentration, the Competition Commission currently applies the qualified market dominance test (dominance plus). COMCO may prohibit a merger or authorize it subject to conditions or obligations if the merger creates or strengthens a dominant market position that could eliminate effective competition (Article 10(2) CartA).

The introduction of the SIEC test will enable COMCO to intervene if a merger

• significantly impedes effective competition; and
• does not result in any verifiable efficiency gains for consumers that are justified by the notifying companies and that offset these disadvantages (Article 10(2) revised CartA).

The switch from the qualified market dominance test to the SIEC test brings the substantive assessment in Swiss merger control in line with the international standard.

Unlike the qualified market dominance test, the SIEC test allows for intervention in cases of unilateral, or «non-coordinated», effects below the threshold for single market dominance. This makes it easier to target certain mergers that significantly impede competition, such as those leading to non-collusive oligopolies, either by prohibiting them or approving them subject to conditions and obligations. It is no longer necessary to establish that such mergers lead to the creation or strengthening of a dominant market position.

In addition to lowering the threshold for COMCO intervention in notifiable concentrations, the SIEC test also allows for a better assessment of efficiency gains resulting from these concentrations. These efficiency gains (e.g., synergies) must be objective and verifiable. According to the dispatch, this wording emphasizes the increased obligation of companies to cooperate and substantiate these gains (dispatch of May 24, 2023, p. 38).

3.2 Simplified Notification for International Mergers

For international mergers that are also assessed by the European Commission, the revised Cartel Act will waive the notification requirement if all the affected markets are defined geographically in such a way that they cover Switzerland and at least the European Economic Area (EEA) (Article 9(1^bis) revised CartA).

This change is logical and reflects the fact that the same substantive assessment (the SIEC test) will now be applied by both the EU and Swiss competition authorities. Therefore, no differences in the outcome of that assessment would be expected. However, the significance of this change should not be overestimated. Even today, merger notifications in Switzerland in such cases are regularly based on the notification submitted to the EU Commission. As defining the geographic scope of affected markets can be uncertain, many concentrations will still have to be notified to the Competition Commission in case of doubt. The dispatch expressly states that it is the responsibility of the companies concerned to check the conditions for a waiver of notification and that, in the event of an erroneous waiver of notification, this must be reported «without delay» (dispatch of May 24, 2023, p. 34 f.).

4. Strengthening Private Enforcement

Companies and natural persons who have suffered damage due to unlawful competition agreements will be able to bring civil law claims. The partial revision extends this right to end customers, including consumers and public authorities.

According to Article 12 of the revised CartA, anyone whose economic interests have been threatened or harmed by an unlawful restriction of competition may claim for damages or the surrender of profits. The revised Cartel Act therefore closes a liability gap: Previously, a company that unlawfully hindered competition could, under certain circumstances, defend itself against damages claims brought by other companies by arguing that they had not suffered any loss because they were able to pass on any additional price paid as a result of the infringement downstream to the end customers (known as the passing on defense). These end customers were unable to bring claims for damages due to a lack of standing.

The limitation period for damages claims will also be extended to five years from the date of the relevant conduct and will be suspended from the opening of the investigation by COMCO until its final decision on liability (Article 12(1) revised CartA). In addition, the power of civil courts to rule that an anticompetitive agreement is void has been clarified, further facilitating the enforcement of civil claims (Article 13 revised CartA).

5. Amendments to Administrative Procedural Law

The partial revision also makes certain changes to administrative procedure. In particular, deadlines (Article 44a revised CartA) and compensation for parties in antitrust proceedings (Article 53b revised CartA) are introduced. In addition, the law now expressly enshrines the so-called «Principle of Investigation» (Article 39a revised CartA).

The notification procedure under Article 49a(4) of the revised CartA will also be amended. As part of this procedure, companies can notify COMCO in advance of planned conduct that could be classified as an unlawful restriction of competition. Currently, any sanctions for the notified conduct are waived where COMCO does not initiate a preliminary investigation (Article 26 CartA) against the company within five months. Under the partial revision, this period will be reduced to two months and COMCO will be required to initiate a formal investigation (Article 27 CartA) during this period to retain its power to sanction the conduct. Failure to do so will eliminate any risk of sanctions associated with the proposed conduct.

6. Key Implications for Businesses

For companies, the key implications of the reform are as follows.

The revised Cartel Act requires an effects-based analysis of potential restrictions on competition. This will make it more difficult for COMCO to prove an unlawful agreement or abuse of a dominant market, while also giving companies more scope for meaningful cooperation.

The lower thresholds for intervention in merger control may lead to more in-depth investigations (Phase II). At the same time, the SIEC test will make it easier to assess the efficiency gains associated with a merger.

Certain hurdles to bringing civil antitrust claims have been lowered, including through the extension of standing to consumers. This may lead to an increase in the number of damage claims brought against companies in Switzerland in relation to alleged violations of the Cartel Act.