EU/Switzerland C ompetition Law Cooperation Agreement

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


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



> 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?



> 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


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


David [email protected]

Schellenberg Wittmer Ltd / Attorneys at LawLöwenstrasse 19 P.O. Box 18768021 Zurich / SwitzerlandT +41 44 215 5252 F +41 44 215 5200

Thank you for your attention.

Documents

EU/Switzerland C ompetition Law Cooperation Agreement