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EU/Switzerland Competition Law Cooperation Agreement
David Mamane, LL.M.
European Parliament ECON Briefing Session, 6.11.2013
EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 2/7
General remarks
> The following presentation is made from a practitioner's point of view
and will focus on the specific novelty of the 2nd generation agreements:
Exchange of confidential information> Generally there can be a legitimate interest to coordinate cross-border
investigations in order to prevent diverging results (insofar as a
diverging result is not the consequence of different legal conditions)> Already done today on the basis of individual waivers in merger control
and leniency procedures> EU/Switzerland: Similarity (not identity) of the competition law rules
equivalence of the outcome in many cases, but differences remain
EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 3/7
Potential issues (1/3)
> Judicial protection in case of information exchange without consent of
the affected parties> Possibility to exchange information upon a formal request> The Cooperation Agreement does not include any rules on the possibility to
appeal the information exchange> Is the possibility to appeal against the collection of the information/evidence
and against the final decision sufficient?> The courts will have to decide on the appeals possibility based on the
applicable (national) procedural law diverging results possible?> Will the affected parties be informed regarding the request for information by
the other authority? Unclear based on article IX(1) of the Cooperation
Agreement, but affected parties should be informed
EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 4/7
Potential issues (2/3)
> Protect effectiveness of leniency procedures: > Information obtained within leniency procedures may not be disclosed
(except with written consent of the party)> Which “information” is protected: Only the leniency application or also the
evidence submitted together with the leniency application?> Cooperation obligation of leniency applicant: Leniency applicant should not
be obliged to agree to an information exchange based on his obligation to
cooperate
> Ensure attractiveness of settlement procedures:> Information obtained within settlement procedures may not be disclosed
(except with written consent of the party)> How to deal with information that has been exchanged prior to the settlement
claw-back mechanism?> Relevant time for cutting-off the information exchange: start of the settlement
negotiations or final confirmation of the settlement?
EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 5/7
Potential issues (3/3)
> Exchange of protected data / data protection rules: > Protection of personal data must be ensured> Equivalence of data protection rules, e.g. regarding legal entities? Possibly
Swiss protection goes further in some cases.> Necessity of additional safeguards?> Specific confidentiality laws : Admissible to exchange such information?
> Exchange of Diplomatic Notes on the notification of acts of public
authority in the area of competition policy> Only for acts by the European Commission > Issues of blocking statutes remain
EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 6/7
Considerations for future agreements
> To be assessed whether there is sufficient similarity/equivalence
between the involved competition law regimes> Rules regarding judicial protection could be determined in the context
of the agreement ensure coherent and foreseeable application in
both jurisdictions> Procedural steps in the context of settlement/leniency procedures
could be clarified and possibly extended in order to maintain the
attractiveness of these procedures> Assess the bilateral application of the possibility to notify acts of public
authority
EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 7/7
David Mamane
Schellenberg Wittmer Ltd / Attorneys at Law
Löwenstrasse 19
P.O. Box 1876
8021 Zurich / Switzerland
T +41 44 215 5252
F +41 44 215 5200
Thank you for your attention.