During the consultation process on the partial revision of the Cartel Act, there were repeated calls to also tackle the urgently needed institutional reform. Although the Federal Council has identified fundamental problems, the current draft, on which the consultation ended on 6 October 2025, does not adequately address the shortcomings. Since direct sanction proceedings under antitrust law are considered criminal proceedings according to the European Convention on Human Rights (ECHR), the institutional separation of the investigating and decision-making authorities is imperative. This is the only way to guarantee fairness and legal certainty.
An attempt to restructure the competition authority failed back in 2012. However, in the context of the ongoing revision of the Cartel Act, it has become clear that institutional reform is urgently needed. The main points of criticism are the lack of separation between the investigating and decision-making authorities, the lengthy proceedings and the lack of specialisation of the appeal authority. Even the Federal Supreme Court has ruled that the Competition Commission’s (COMCO) sanctioning procedure is not in conformity with the ECHR and the Swiss Constitution.
No Level Playing Field at COMCO
There is a massive information gap between the secretariat and COMCO. The secretariat has an enormous influence on COMCO’s decisions and their reasoning. This contradicts the principle of separation between the investigating and decision-making bodies. In addition, there is a clear imbalance between the right of companies to be heard and the contribution made by the secretariat. There is simply no level playing field. In criminal proceedings, it would be unacceptable for the prosecutor’s office to shape the proceedings and justify the decision of the issuing authority itself, while the defence does not have equal access to an independent and open-minded decision-making body. Why should it be any different in competition law?
Proceedings with Side Effects
In addition, the public announcement of investigations and the often years-long duration of proceedings cause considerable damage to companies’ reputations – regardless of the subsequent decision and the legality of their conduct. Currently, accepting a so-called ‘amicable’ settlement is the only way to minimise this damage. However, fair proceedings must ensure that no damage is caused in the case of lawful conduct. As important as protection against cartels is, the current proceedings are not fair.
Courage for Far-Reaching Reform
Institutional separation is essential to improve the separation of powers. The ideal solution would be to set up an independent competition court based on models from other countries. This would ensure a level playing field for the prosecution and the companies concerned and would significantly shorten the duration of proceedings. At the very least, however, the COMCO itself must be strengthened so that it can examine the facts independently, critically question the secretariat’s motions and, if necessary, gather its own evidence. This could be achieved by introducing a commission clerk function and by separating the secretariat and COMCO spatially and organisationally. For SwissHoldings, it is essential that Switzerland has a modernised, fair, efficient and constitutional COMCO. The time is ripe for a bold and far-reaching reform.
Contact
Felix Küng | Legal Manager | +41 (0)31 356 68 64
