cent decisions in Swiss Competition L

Transcription

1 cent decisions in Swiss Competition L ine distribution, refusal to deal, information exchang ubert Orso Gilliéron & McKenzie Geneva

2 ummary

3 mary oduction -line distribution (Electrolux, V-Zug) usal to deal (Swatch) usal to deal (SIX) nctions

4 n-line distributio

5 cision of July 11, 2011 (Electrolux, V Zu al by manufacturers to retailers to distribute products on net ect and indirect denial reement in the meaning of art. 4 CartA mplicit agreement Common interest coordinated behaviour

6 cision of July 11, 2011 (Electrolux, V Zu ng special circumstances, art. 5 para. 4 CartA not applic rohibition of Internet sales cial circumstances commended prices, rebate policies chnical territorial restraints to consumers (automatic viation, refusal of payments from abroad)

7 cision of July 11, 2011 (Electrolux, V Zu net essential for ormation of consumers ce, market transparency mpetitive pressure ssment of prohibition of Internet sales alitative criteria Potential effect on price Prohibition of passive sales antitative criteria Individual market share between 20-30% Cumulative market share above 50% nificant restraint in the meaning of Art. 5 para. 1 CartA

8 cision of July 11, 2011 (Electrolux, V Zu o justification on grounds of economic efficiency No net free riding (double side free riding) No specific harm to quality or loss of efficiency

9 cision of July 11, 2011 (Electrolux, V Zu otes No deterrant strategy admitted (need for providing clear information, including on prices) Cumulative effects on the market to be observed In casu, no clear consequence In future, probable closer look on the necessity to opt selective distribution Qualitative selective distribution No hardcore restraint allowed Real need for advice or service (comparison with othe similar products / comparison with other countries / no contradictions)

10 cision of July 11, 2011 (Electrolux, V Zu ssible restraints to on-line distribution Qualitative restraints (presentation, image, service) Link on-line distribution with brick and mortar point of sal Clear indication of the brick and mortar point of sale and dentity of the distributor undue restriction regarding Domain name Resale of other products

11 efusal to deal

12 rim measures of July 11, 2011 (Swatc nounced phasing-out of ETA and NIVAROX from the arkets of "ebauches" and "assortiments" respectively icable agreement between Secretariat and firms also w spect to interim measures casu, protective interim measures no favorable prognose needed reement limited to the duration of the enquiry by the thority reement "freezes" the situation, i.e. limited reduction, no rease in deliveries

13 rim measures of July 11, 2011 (Swatc real analysis of any legitimate business reasons real explanations as to why the measures where confor the proportionality principle (probable significant impact mpetition by impeding any growth of competitors on the wnstream market) ses the question as to how much and how long must a minant firm be restricted in its economic freedom (no ssible change of strategy) so, role of customers and competitors on a downstream arket (active or passive role)

14 cision of November 29, 2010 (SIX) Issuer CHF / EUR Acquirer EUR CHF Card Owner CHF / EUR Commerce

15 cision of November 29, 2010 (SIX) dertaking in group of companies Mother company and relevant subsidiaries Relevance of the economic independence? legislation and CartA Art. 3 para. 2 CartA : no normative character (?) P rights to be taken into account in the context of the aterial analysis of a behaviour under the CartA (?) No protection for interfaces (technical aspects and conce

16 cision of November 29, 2010 (SIX) use of a dominant position No need for an elimination of competition (impediment ffices) No need for a significant effect on the market fusal to deal Refusal to provide interfaces information = refusal to dea he input is necessary when no substitution method exist oid the negative consequences of the refusal on the long m anticompetitive effects needed (increase of market share e dominant firm, slower decrease of market shares) no legitimate business reason (no rationale strategy)

17 cision of November 29, 2010 (SIX) scrimination same treatment for different situations different treatment for similar situations efusal to deal may be a discrimination obligation for the dominant firm not to treat differently its bsidiaries and the competitors of such subsidiaries mmercial partners commercial partners on the dominated market or on a ated market he attempt to have a business relationship suffices he impediment of competitors of the dominant undertaki ffices

18 cision of November 29, 2010 (SIX) nction irect sanction for situations described in Art. 7 para. 2 o direct sanction for situations falling within the scope o. 7 para. 1 only oup of companies: maximum amount based on the turno he whole group reduction based on the absence of profit

19 anctions

20 nctions rruption of the anticompetitive behaviour destruction of documents cable settlement -denunciation nunciation of a new offence operation mpliance programs?

21 uestions

22 ank you!