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- Art. 31 para. 2 lit. e FADP
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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Overall concept of Art. 96 FC and its position in the economic constitution
- II. History of Art. 96 para. 1 FC
- III. Context
- IV. Commentary in the narrow sense
- Recommended further reading
- Bibliography
- Materials
I. Overall concept of Art. 96 FC and its position in the economic constitution
A. Structure of Art. 96 FC
1 Art. 96 FC combines federal powers for three important areas of economic regulation in a single article: paragraph 1 of the provision concerns cartel law, paragraph 2(a) concerns price supervision law, and paragraph 2(b) concerns law against unfair competition. In the old Federal Constitution, these three areas were divided between different provisions: responsibility for antitrust law was enshrined in Art. 31bis para. 3 lit. d aBV, which had been adopted in 1947 as one of the “new economic articles.” Art. 31septies aBV on price supervision was based on a popular initiative that was accepted in 1982. And federal jurisdiction over unfair competition law was not specifically regulated, but was derived, among other things, from the jurisdiction over the regulation of private-law gainful employment (Art. 31bis para. 2 aBV).
2 The common link between the three areas of competence is their reference to competition. The Constitution does not define what is meant by competition, but leaves the details to the legislature. However, the basic understanding of the three areas can be outlined as follows: While antitrust law protects the freedom and effectiveness of competition, the law against unfair competition is concerned with fairness in the economic process. Antitrust law thus combats the “overcooling” of competition, i.e., restrictions that are contrary to its functioning, while unfair competition law combats “overheating,” i.e., excesses that are contrary to its functioning. Price supervision law is systematically classified as antitrust law due to its focus on market power and protects market participants from competitive deficits in terms of pricing. Due to the specific legislative mandate in Art. 96 para. 2 lit. a FC, it constitutes an independent pillar of competition policy. The legal classification in paragraph 2 together with the law against unfair competition is not convincing in view of the antitrust nature of price supervision.
3 Art. 96 FC, entitled “Competition policy,” can therefore be described as a competition article consisting of a cartel article (Art. 96 para. 1 FC), a price supervision article (Art. 96 para. 2 lit. a FC), and an unfair competition article (Art. 96 para. 2 lit. b FC). Typologically, Art. 96 FC is a materially limited competence norm with subsequent derogatory effect, which assigns the (legislative) competence for the aforementioned areas to the Confederation. Insofar as the Confederation does not exercise its legislative competence, the cantons remain competent. In the area of antitrust and price supervision law, the federal legislature has made exhaustive use of its powers, leaving no room for cantonal antitrust or price supervision law. The same applies to the law against unfair competition, except that here the cantons have retained relevant powers in the area of trade regulation.
B. Relationship to economic freedom and the internal market
4 The combination of the three sub-areas in a single article underscores the importance of competition protection in the overall structure of the economic constitution. There is a close link to the economic freedom guaranteed as a fundamental right in Article 27 FC and institutionally in Article 94 FC: On the one hand, entrepreneurial initiative must be protected from state restrictions. On the other hand, companies must not damage competition through cartels or other restrictions on competition or distort it through unfair conduct. Both protective measures come together when competition is restricted by public enterprises. It follows from the principle of competition neutrality that antitrust law applies equally to private and public enterprises. The occasionally used formulation that antitrust law has the function of combating “private” restrictions on competition is therefore reductionist. In general, it is a matter of restrictions on competition by companies (in the field of unfair competition law also by other market players), whether private or public. The constitutional legislator tasks the legislature with establishing a market economy based on the principle of competition in the economic sphere.
5 Art. 95 FC, in particular para. 2, also serves to dismantle public restrictions on trade. Intercantonal restrictions are to be eliminated by creating a uniform Swiss economic area. The establishment of a nationwide internal market serves to realize economic freedom. The Internal Market Act fulfills these requirements.
C. Consumer protection
6 There is also a close link to consumer protection. Only when competition is functioning properly can consumers enjoy products that are as inexpensive, high-quality, and innovative as possible. The competitive economy guarantees consumer sovereignty, i.e., it gives those at the end of the value chain the power to decide what is produced in the economy. If the competitive mechanism is disrupted by restrictions or distortions, consumers lose their sovereignty. Because of this close connection, the 1995 draft constitution still provided for the federal competence for consumer protection to be integrated into the article on competition (Art. 78 para. 3 VE 95). However, since consumer protection issues go beyond competition issues, it was ultimately decided to include a separate article on consumer protection, namely Art. 97 FC. Nevertheless, the interplay between competition and consumer protection must always be taken into account: protecting competition also protects consumers. And well-informed consumers ensure that competition can fulfill its functions.
D. Further constitutional references
7 A market economy is not a natural state, but requires various guarantees in order to be realized. Property must be guaranteed (Art. 26 FC), including both private and publicly acquired property as well as intellectual property. Freedom of contract must prevail, which is encompassed by the fundamental right and principle of economic freedom. The same applies to the right to pool the resources and means of many, e.g. in companies. The proper functioning of the market economy depends on a stable currency (see Art. 99 FC and the NBA). Finally, there must be equality before the law (Art. 8 FC).
8 There are also tensions between the principle of competition and individual constitutional provisions. For example, Art. 28 FC guarantees employees and employers freedom of association, i.e. the right to collectively negotiate employment and working conditions and to conclude collective labor agreements. If the social partners do not exceed these limits, antitrust law does not apply and the competition mechanism is suspended to that extent.
9 Finally, both within and outside the section on the economy, the Federal Constitution contains numerous policy areas and economic sectors for which special provisions are laid down, e.g. on public works and transport (Art. 81 ff. FC), energy and communications (Art. 89 ff. FC), agriculture (Art. 104 FC) and housing, work, social security, and health (Art. 108 ff.). Only relatively rarely do these provisions allow the Confederation to deviate from the principle of economic freedom (see, for example, Art. 104 para. 2 FC). This does not abolish the principle of competition; for example, the measures must respect the principle of competitive neutrality.
E. Structure of the presentation
10 The three areas of regulation referred to in Art. 96 FC, namely antitrust law, price supervision law and unfair competition law, aim to protect effective and undistorted competition or to correct undesirable developments where competition has already been damaged. They do this in different ways and with different instruments, so that the three federal powers integrated into the competition article are presented separately below. In accordance with the order provided for in the constitutional article, the presentation of the cartel article, i.e. Art. 96 para. 1 FC, comes first.
II. History of Art. 96 para. 1 FC
A. The “new” economic articles of 1947: The ‘old’ cartel article
11 The “new economic articles” inserted into the Federal Constitution in 1947 were intended to create the constitutional basis for measures that had been based on emergency law until 1947. These included Art. 31bis aBV, which in paragraph 2 granted the Confederation the power to enact regulations on the exercise of professions and to take promotional measures, but only in accordance with the freedom of trade and industry. Paragraph 3 provided for exceptions to this requirement: if justified by the public interest, the Confederation was authorized to enact certain rules “if necessary in derogation from freedom of trade and industry,” including, under lit. d, provisions “against the economically or socially harmful effects of cartels and similar organizations.”
12 The message on the new economic articles set out the historical background. According to the message, associations and cartels had, through a “network of ties and restrictions,” “effectively rendered freedom of trade and industry largely ineffective.” In a process of association formation lasting around 100 years, an association had been created for every profession. The formation of associations had “largely eliminated one of the basic prerequisites of economic liberalism, namely that economic life is a free interaction of individual forces of approximately equal strength whose interests balance each other out in the market.” Federal authority to enact rules against harmful cartels and similar organizations was intended to counteract these phenomena.
13 In order to understand the cartel tendency of the Swiss economy, it is important to note the cartel-friendly stance taken by the Federal Supreme Court during these decades. The Federal Supreme Court's decision in the Vögtlin bakery case in 1896 is fundamental. A price-breaking baker was boycotted by the bakers' association. The Federal Supreme Court ruled that “the free agreement of a minimum price below which the members of the association may not sell their goods [...] does not in itself violate good morals or the general legal order,” thereby legalizing cartels in principle. However, this did not prevent the Federal Supreme Court from protecting outsiders by other means: The call for a boycott was to be classified as unlawful damage, namely as an attack on the trader's right to “respect for his personality.” This established a basic pattern: the principle of “freedom from cartels” applied. However, individuals were protected against the worst excesses (e.g., collective boycotts) by means of personal rights.
14 The new economic articles are based on this rule/exception relationship. In line with the cartel-friendly mood of the time, the Federal Council stated in its message that "it cannot be a question of preventing or combating cartels as such, but merely of controlling them, in particular by introducing a certain obligation of disclosure and combating abuses and excesses.“ Respect for the ”complex and difficult“ problem went so far that statements ”on the detailed design of future antitrust legislation“ were considered ”premature." The inclusion of an antitrust article in the Federal Constitution at that time was therefore on the back burner.
15 It was not until 1962 that the first antitrust law was passed, which was replaced by the Antitrust Act of 1985. The Antitrust Act of 1995, which has been revised several times in the meantime, is currently in force. While the Cartel Acts of 1962 and 1985 can be considered weak in both substantive and institutional terms, the Cartel Act of 1995 is a modern cartel law that is consistently geared toward protecting effective competition. All three antitrust laws were based on Art. 31bis para. 3 lit. d aBV. The amendments made since 2000 refer to the antitrust article of the new Federal Constitution, i.e. Art. 96 para. 1 FC. The reference in the preamble to the Cartel Act has been amended accordingly.
B. The antitrust article of the revised Federal Constitution
16 The wording of Art. 96 para. 1 FC closely follows Art. 31bis para. 3 lit. d FC, but contains three differences of considerable significance. Firstly, the Confederation is no longer merely “authorized” to enact antitrust legislation, but is “required” to do so, i.e., it is obliged to do so. Secondly, the reference is no longer to the harmful effects of “cartels and similar organizations” (as in the old Federal Constitution), but to those of “cartels and other restrictions on competition,” thereby removing the organizational restriction (see N. 56 f. below). And thirdly, Art. 96 para. 1 FC is characterized by the fact that the additions “if the general interest justifies it” and “if necessary, in deviation from freedom of trade and industry” have been omitted.
17 While the first two amendments are to be discussed in the individual commentary (below N. 40 f., N. 56 ff.), the significance of the omission mentioned above should be emphasized here. The old Federal Constitution assumed that there was a conflict between freedom of trade and industry on the one hand and antitrust law on the other. If the overall interest justified it and “if necessary,” it was possible to deviate from freedom of trade and industry in order to prevent the excesses of cartels (see N. 14 above). It was therefore not cartels but cartel law that was interpreted as a deviation from economic freedom.
18 Art. 96 para. 1 FC does not require such caveats. According to the message on the new Federal Constitution, the introductory sentence of the old Federal Constitution is “superfluous and does not need to be retained in the draft, as the aim of competition policy is to secure a free economic order.” Since competition law serves to “support and strengthen the principle of economic freedom,” there is therefore no deviation from the principle of economic freedom, which is why the reservation that a deviation from this principle is permitted if necessary is no longer necessary. Cartel law does not restrict economic freedom in a manner contrary to fundamental principles, but rather expresses its inherent limits.
19 This established a doctrine that had already been expressed in the old antitrust article, namely that the application of antitrust law should not be regarded as a deviation from the freedom of trade and industry contrary to fundamental principles. Early on, for example, Zaccaria Giacometti had argued that freedom of contract was only covered by the principle of economic freedom “insofar as its exercise does not impair the system of free competition; in other words, restrictions on private autonomy for the protection of the system of free competition are compatible with freedom of trade and industry.” By dispensing with the reservation, the new Federal Constitution expresses in this sense that there is no contradiction between antitrust legislation and economic freedom. The fight against cartels and other restrictions on competition, which the legislature is now not only entitled but also obliged to pursue, is therefore not a restriction of economic freedom, but serves to guarantee economic freedom in the long term. Economic freedom does not include the right to abolish this freedom through cartels or other restrictions on competition. This amendment reflects a fundamental change in the understanding of freedom, recognizing the paradox of freedom in the economic sphere.
20 This milestone in antitrust philosophy has reversed the perspective of competition policy. It is no longer simply a matter of combating the excesses of cartels (see N. 14 above). Rather, the constitutional legislator instructs the legislature to protect economic freedom from self-abolition. The tolerance towards restrictions on competition that underpinned the old cartel article has been replaced by a critical view of cartels.
21 It is noteworthy that the assessments in the literature on the significance of this development vary considerably. While some classify the deletion of the introductory sentence as a “paradigm shift,” others do not attach any particular significance to the change. On closer inspection, however, there is no difference in substance. For those who did not see any deviation from freedom of trade and industry in antitrust law under the old Federal Constitution, it is logical not to attach any particular significance to the deletion of the reservation in the new antitrust article. This position has probably been the majority view since the mid-1980s. However, not everyone followed the newer interpretation, continuing to assume the principle of freedom from cartels and seeing the antitrust article and legislation as an “encroachment on the principle of private autonomy in economic activity.” Since the omission of the introductory sentence has clarified the majority view in this respect, the process as a whole should be accorded fundamental significance.
22 This statement refers to the institutional dimension of economic freedom. A distinction must be made between the principle of economic freedom (Art. 94 para. 1 FC) and the fundamental right to economic freedom (Art. 27 FC). From a fundamental rights perspective, antitrust law is a restriction of the economic freedom guaranteed by Art. 27 FC, which is subject to the requirements of Art. 36 FC. However, this does not mean that there is (still) a – however limited – “freedom from cartels.” Rather, antitrust law is one example of a conflict between fundamental rights and the principle of economic freedom. On the one hand, antitrust law is a restriction of fundamental rights; on the other hand, it supports and strengthens a free competitive order and thus realizes the principle of economic freedom. The antitrust article (Art. 96 para. 1 FC) resolves this ambivalence: It clarifies that the protection of effective competition is a public interest within the meaning of Art. 36 para. 2 FC, so that the interference with the fundamental right is lawful if the other requirements of Art. 36 FC are also met. With regard to the applicable constitutional law, there can therefore no longer be any talk of “freedom from cartels.”
23 The popular initiative “Stop the high price island – for fair prices (Fair Price Initiative)” submitted on December 12, 2017, would have added a second sentence to Art. 96 para. 1 FC with the following wording: “It [scil. the Confederation] shall, in particular, take measures to ensure non-discriminatory procurement of goods and services abroad and to prevent restrictions on competition caused by unilateral behavior on the part of companies with market power.” A transitional provision in Art. 197 FC would have obliged the Federal Council to issue implementing provisions by the time the amendments to the law came into force, which would have incorporated, among other things, the concept of relative market power into antitrust law and the guarantee of non-discriminatory online shopping into the law against unfair competition. The legislature implemented the central concerns of the Fair Price Initiative by revising the Cartel Act on March 19, 2021 (AS 2021 576). The initiative was subsequently withdrawn on March 25, 2021, leaving the cartel article of the Federal Constitution unchanged.
III. Context
A. Scope of Art. 96 para. 1 FC
24 Art. 96 para. 1 FC focuses on competition as an institution. However, this does not preclude the provision from also being interpreted as protecting individuals. The individual protection of competitors and other market participants is mainly provided by Art. 27 FC, which is therefore also mentioned in the preamble to the Cartel Act. Art. 96 para. 1 FC does not merely grant the Confederation the power to legislate in the field of antitrust law, but also adds substantive requirements, in contrast to, for example, the competence provision for the law against unfair competition in Art. 96 para. 2 lit. b FC: The provisions to be enacted must be directed “against the economically or socially harmful effects of cartels and other restrictions on competition.” Art. 96 para. 1 FC is therefore a competence provision with a substantive directive.
25 The significance of this directive is disputed. A traditionalist school of thought derives from this that Swiss antitrust law is subject to the abuse principle. This distinguishes it from most other antitrust legal systems, which follow the prohibition principle. This view is opposed by those who argue that Art. 96 para. 1 FC does not contain any commitment to the abuse principle, or which consider the distinction between the prohibition and abuse principles to be obsolete, insignificant or irrelevant. The sometimes rather apodictic discussion suffers from the fact that, in some cases, definitions are chosen which are misguided in their understanding of the concept of abuse and lead to confusion. The terminology must therefore first be clarified.
B. The terms “abuse principle” and “prohibition principle”
26 Originally, there was agreement on the meaning of the term “abuse principle” in antitrust law. For example, the 1962 message on the Cartel Act describes the abuse principle as follows: “A cartel law must in principle allow cartels and similar organizations and limit itself to combating abuses.” This is based on a positive view of cartels: they are welcomed as a fundamentally good form of economic order. For this reason, they remain permitted (just like other restrictions on competition); only abuses of cartel formation are to be combated. The abuse principle corresponds to the recognition of a principle of “freedom from cartels,” which may only be violated in justified individual cases. Under the abuse principle, competition has a low priority.
27 This has consequences on the legal consequences side: in a cartel law system that follows the abuse principle, cartel agreements are initially effective and only become void once a legal authority has legally prohibited the cartel (ex nunc nullity). Under the prohibition principle, however, agreements that violate antitrust law are void from the outset (ex tunc nullity). This terminology was well known to the legislators who drafted the 1995 Cartel Act. The message accompanying the 1995 Cartel Act states: “The abuse principle does not allow for ex tunc nullity, but only ex nunc nullity.”
28 For sanctions, this means that since, according to the abuse principle, conduct only becomes illegal at the moment when a legal authority has issued a final prohibition, no direct sanctions can be imposed because the cartel conduct was legal in the past. Direct sanctions are, however, compatible with the prohibition principle because the conduct was contrary to antitrust law from the outset.
29 Some legal scholars, however, give the term “abuse” a different meaning: the principle of abuse refers to the substantive directive in Art. 96 para. 1 FC, according to which antitrust provisions must be directed against the harmful effects of cartels and other restrictions of competition. According to this doctrine, abuse therefore consists in the negative effects of competitive behavior. This shift in terminology apparently serves as a lifeline for this part of the doctrine in order to solve its fundamental problem: Art. 96 para. 1 FC does not refer to “abuse.” In deviation from the traditional meaning, they attribute a consequentialist meaning to the concept of abuse, which is itself laid down in the constitutional article, but must be distinguished from the category of “abuse.”
30 A distinction must be made between two pairs of categories, namely between the prohibition and abuse principles on the one hand and the form-based and effect-oriented approaches on the other. The prohibition and abuse principles say something about the basic attitude toward cartels and the effectiveness of antitrust rules (negative vs. positive attitude toward cartels; initial vs. subsequent prohibition), while the contrast between form and effect concerns the substantive requirements in antitrust cases (type of restriction of competition vs. effect of the restriction of competition). A glance at US antitrust law shows that it is incorrect to equate the abuse principle with the effect-oriented approach: The most pronounced effect-based approach worldwide is combined with the prohibition principle.
31 Equating the abuse principle with the effect-oriented approach leads to numerous misunderstandings and, due to the use of idiosyncratic terminology, jeopardizes comparative law. The following therefore distinguishes between two questions. First, it must be clarified whether Art. 96 para. 1 FC requires the legislature to apply the abuse principle (see below), and second, it must be determined to what extent the constitutional requirements commit the legislature to an “effects-based approach” (see N. 44 ff. below).
C. Commitment to the abuse principle?
32 The abuse principle is characterized by a positive attitude towards cartels. In keeping with the spirit of the time, the 1937 message on the old cartel article (Art. 31bis para. 3 lit. d aBV) was entirely in line with this approach (see N. 14 above). However, it also made it clear that no decision should be made in advance on how a possible cartel law should be structured in concrete terms. A distinction must therefore be made between the broad scope provided by the Federal Constitution and the specific provisions enacted by the ordinary legislature. The Cartel Acts of 1962 and 1985 clearly followed the abuse principle. The legislators who drafted the Cartel Act of 1995, which brought about a paradigm shift toward the protection of effective competition and thus ushered in a “new era of competition policy,” began to have their first doubts. The message accompanying the Cartel Act of 1995 contains, on the one hand, a relativization of prohibition and abuse legislation. In other places, however, the message expressly commits itself to the abuse principle. Despite this ambivalence, it seems correct to also classify the Cartel Act of 1995 as abuse legislation.
33 According to the opinion expressed here, however, the Cartel Act switched to the prohibition principle with the introduction of direct sanctions by the 2003 revision of the Cartel Act. As already explained, direct sanctions cannot be justified by the abuse principle (see N. 28 above). In addition, the Federal Supreme Court has recognized the ex tunc nullity of contracts that violate antitrust law, which is also characteristic of the prohibition principle (see N. 27 above). With these two changes, the Cartel Act has thus abandoned the abuse principle.
34 In the constitutional context at issue here, however, the question is not which principle applies at the level of ordinary law, but whether the cartel article of the new Federal Constitution permits prohibitive legislation or, conversely, enshrines the principle of abuse. The recognized methods of interpretation must be applied to answer this question. The wording of Art. 96 para. 1 FC does not contain the term “abuse.” In terms of its historical origins, it should be noted that Art. 31bis para. 3 lit. d aFC, i.e., the cartel article of the old Federal Constitution, was rooted in the cartel spirit of the time, but the legislature did not want to draw narrow boundaries. The new cartel article in Art. 96 para. 1 FC shows determination on the one hand: the enactment of cartel law is no longer left to the legislature, but becomes an obligation. On the other hand, the message accompanying the new antitrust article states even more clearly than the message accompanying the old antitrust article that the antitrust article does not specify the “means of antitrust policy,” that the antitrust legislator has ‘considerable’ leeway, and that it may “also partially use the means of prohibiting cartels.” This is a direct response to and a clear rejection of the previously held principle of “prohibition of prohibitive legislation.” The only thing that is ruled out is a general prohibition of competition agreements as such. The history of its development therefore suggests that the antitrust article is agnostic on the question of principle: the legislature is free to decide whether it wishes to base antitrust law (which must be enacted) on the abuse principle or the prohibition principle. The message accompanying the new Federal Constitution does not even mention the concept of abuse (in the context of antitrust law). It is true that the message accompanying the Cartel Act of 1995 states that the Federal Constitution prescribes the abuse principle, even if this statement is qualified in other places (see N. 32 above). However, a statement in connection with simple legislation cannot override the standardization at the constitutional level, which grants the antitrust legislator considerable leeway, including the possibility of partial prohibitions. Those who attribute absolute validity to the statement in the 1995 message on the Cartel Act fail to do justice to the hierarchy of norms and also overlook the fact that the statement in the Cartel Act message refers to the old cartel article, whereas more recent doctrine and the constitutional change in 2000 have led to a paradigm shift towards a critical view of the cartel economy (see above N. 18 ff.).
35 From a systematic point of view, it should be noted that the Federal Constitution does use the term “abuse” in other places, e.g. in Art. 13 para. 2, 96 para. 2 lit. a, 107 para. 1, 109 para. 1, 119 para. 1 and 120 para. 1 FC. If the constitutional legislator had wanted the legislature to merely prevent abuses of the cartel system, it could have formulated this in line with the aforementioned provisions, as it did, for example, in relation to price supervision (Art. 96 para. 2 lit. a FC: “Prevention of abuses in price formation”), but not in the case of antitrust law (Art. 96 para. 1 FC). Even if it had done so, however, the consequences would not be as articulated by the supporters of the abuse principle, who consider prohibitions based on the abuse principle to be out of the question: For example, the obligation to protect against the misuse of genetic engineering in Art. 120 para. 1 FC has the function of distinguishing between what is permissible and what is impermissible. To implement this, the legislature may issue prohibitions, which it has done in Art. 6 ff. GTG. There is no contradiction with the principle of abuse prescribed by constitutional law for genetic engineering law. Prohibitions are an instrument for preventing abuse.
36 From a teleological perspective, it is of fundamental importance that the new Federal Constitution no longer contains the addition that, if necessary, deviations from freedom of trade and industry are possible (see above N. 18 ff.). Economic freedom needs protection from self-destruction: it is no longer antitrust law but cartels that are identified as the problem. The positive attitude toward cartels is replaced by recognition of the inherent limits of economic freedom. The legislature is now obliged to enact antitrust regulations and thus to protect effective competition. It is “called upon to oppose all private-law encroachments on power.” The objective of the antitrust article therefore also argues against restricting the legislature to a set of principles and, even more so, against an obligation to apply the antitrust-friendly doctrine of abuse.
37 In summary, it can be said that the Cartel Article of the Federal Constitution grants the legislature considerable leeway: Art. 96 para. 1 FC is a target provision that sets the goal for the legislature to prevent damage caused by cartels and other restrictions of competition, but leaves it considerable freedom in the choice of means. There is no commitment to the abuse principle. Only a general ban on cartels subject to authorization is excluded by the provisions of the Cartel Article. It would therefore not be constitutional to introduce a notification and approval system such as that which applied in the European Community until 2004. However, this does not alter the high value that the federal legislature must attach to competition. The assumption of any kind of limited “freedom from cartels” must therefore be rejected. Rather, the legislature is required to “protect the good of competition.”
38 Accordingly, arguments based generally on the abuse principle are not accepted in court. Although the Federal Supreme Court and the Federal Administrative Court have not yet expressly recognized the validity of the prohibition principle, both courts reject arguments based on the abuse principle as irrelevant.
D. Conclusion
39 The abuse principle in antitrust law means that cartels are recognized as a good form of economic order and that, therefore, only abuses of cartel formation should and may be prohibited. According to some legal scholars, the abuse principle is still constitutionally binding on antitrust legislators today. A methodologically sound interpretation of the cartel article of the Federal Constitution paints a different picture: Art. 31bis para. 3 lit. d aBV, the cartel article of the old Federal Constitution, was already formulated in an open manner in this respect. Despite all the sympathy for cartels at the time, the specific form of future cartel laws should not be prejudged. At the latest with Art. 96 para. 1 FC, i.e. the new cartel article, there is no longer any reference to the abuse principle. The cartel legislator is largely free in its design, apart from the introduction of a notification and approval system (see above N. 37).
IV. Commentary in the narrow sense
A. “Adopt”
40 The articles of the Federal Constitution relating to powers are often worded in such a way that a particular matter is “a matter for the Confederation” (e.g., civil law and civil procedure law pursuant to Art. 122 para. 1 FC, criminal law and criminal procedure law pursuant to Art. 123 para. 1 FC). In other contexts, the Constitution goes one step further and stipulates that the Confederation shall “enact” rules on a specific subject (see, for example, Art. 38 para. 2, 74 para. 1, 80 para. 1 and 98 para. 1 and 3 FC). For example, when Art. 98 para. 1 FC states that the Confederation “shall enact” provisions on banking and stock exchanges, this means that it is obliged to enact provisions and that non-regulation is not an option.
41 The same applies to Art. 96 para. 1 FC. The provision obliges the federal legislature to enact antitrust regulations. The question of whether antitrust legislation should be enacted is therefore no longer at its discretion; a “laissez faire” approach to competition policy is consequently ruled out. This is based on the understanding that competition does not maintain itself, but is threatened by self-destruction through cartels and the formation of monopolies (see above N. 19 f.). The state therefore has a responsibility to maintain the competitive system.
B. “Regulations”
42 Art. 96 para. 1 KG obliges the federal legislature to enact antitrust “provisions,” whereby it remains free in terms of legislative technique. The solution actually chosen, namely a separate antitrust law, is not required by constitutional law. It would be constitutional to integrate antitrust law into a market-wide law, as France has done with the Code de commerce. One could also imagine a law that combines antitrust law in the narrow sense and price supervision law under one roof, as long as the integrated antitrust and price supervision law provides for specific price supervision instruments and the institution of a price supervisor. It would also be conceivable to combine antitrust law and unfair competition law in a single law, as some Central and Eastern European countries have done in their transition to a market economy. The Constitution gives the legislature considerable leeway in such matters of legislative technique.
43 The difference in wording between Art. 96 para. 1 (“shall issue regulations”) and para. 2 (“shall take measures”) is purely terminological. This does not mean that the Confederation can only take legislative action in the field of antitrust law (para. 1) and not administrative action. The legislature was therefore right to base the executive provisions on the enforcement of antitrust law by federal authorities on Art. 96 para. 1 FC.
C. “Harmful effects”
44 Pursuant to Art. 96 para. 1 FC, the Confederation must enact provisions against the economically or socially “harmful effects” of cartels and other restrictions on competition. While the message accompanying the previous provision pointed out that “this cannot be a matter of preventing or combating cartels as such, but merely of controlling cartels, in particular by introducing a certain obligation of disclosure and combating abuses and excesses,” the thrust of the new antitrust article is different: “Paragraph 1 does not comment on the means of cartel policy. The scope for maneuver of the cartel legislator is considerable; under certain circumstances, it may also partially use the means of prohibiting cartels.” It may not, however, “generally prohibit competition agreements as such.”
45 Even though the wording “harmful effects” dates back to the old Federal Constitution, its meaning has been reversed in the context of the new Federal Constitution: whereas cartels were originally accepted and there was even talk of “freedom from cartels,” the aim now is to prevent cartels and other restrictions on competition (see above N. 36 f.). The Cartel Act of 1995 anticipated the constitutional change that occurred a few years later by placing the reference to harmful effects in Art. 1 KG in a competition-friendly context: According to the purpose clause of the Cartel Act, the aim of cartel law is to “promote competition in the interests of a free market economy.” The liberal order does not refer to “freedom from cartels,” but rather to comprehensive freedom of competition. This understanding had already been developed in constitutional law for the old antitrust article, but it has been part of constitutional law since the new antitrust article came into force. Cartels and the abuse of monopoly power are fundamentally impermissible because they have harmful effects. These effects must not be arbitrarily minor. In accordance with this, the law therefore requires at least a “significant” impairment of competition in connection with competition agreements (Art. 5 para. 1 KG). A special intervention criterion applies to merger control (Art. 10 para. 2 KG). However, no special qualification is required for the abuse of a dominant market position, since competition in such cases is already weakened precisely because of the dominant market position and the markets concerned must therefore be protected against any further impairment.
46 Some voices in the literature go further, inferring from the provision in Art. 96 para. 1 FC that the legislature can only prohibit conduct where in individual cases harmful effects have been proven. The Constitution obliges legislators and those applying the law to adopt an “effects-based approach.” The constitution is thus interpreted as requiring legislators and law enforcement authorities to resolve individual cases by means of legislation.
47 This view fails to recognize the function of the antitrust article as a constitutional norm of competence. According to the materials, the legislature is granted wide discretion, which includes the possibility of prohibitions (see N. 34 above). The “effects-based approach” is an approach developed in the US by representatives of the Chicago School and widespread since the 1970s. The Swiss constitutional legislator, both in the new economic articles of 1947 (when the Chicago School did not yet exist) and in the Federal Constitution of 2000, had no intention of enshrining a specific competition policy theory in the Federal Constitution. Incidentally, the main thrust of the Chicago School was to apply more economic analysis to vertical competition agreements, unilateral conduct, and merger control. The per se prohibition of classic cartels in US antitrust law remained unaffected by this and continues to be consistently enforced. It is therefore not permissible to read into the cartel article a meaning that was foreign to the constitutional legislator using the term “effects-based approach.”
48 The fundamental debate on the objectives of antitrust law also argues in favor of a restrictive interpretation. A distinction must be made here between utilitarian approaches, which focus on the objective of efficiency, and deontological or systemic concepts, which protect competition as such (“theory of freedom of competition”). The “effects-based approach” is an efficiency-oriented approach that can be classified as utilitarian and has been promoted (but not absolutized) by the European Commission since the 1990s under the slogan “more economic approach.” Even decades later, it remains unclear to what extent the efficiency criterion should be applied in antitrust law. Even leading representatives of the Chicago School were of the opinion that exaggeration of the efficiency criterion should be avoided. There is much to suggest that a synthesis between the fundamental positions is possible and advisable. It is completely inconceivable that the constitutional legislator wanted to resolve the fundamental dispute over competition policy and commit the antitrust legislator to a particular school of thought. The discussion on the objectives of antitrust law also suggests that the Constitution does not impose a general obligation to adopt an “effects-based approach.”
49 The key to the correct interpretation of the term “harmful effects” can be found in the message accompanying the Cartel Act of 1995: According to this, the cartel article of the Federal Constitution makes it clear that competition legislation may not pursue arbitrary objectives, but must protect against the negative effects of cartels and other restrictions on competition. The balance theory applicable under the Cartel Acts of 1962 and 1985, which recognized non-competitive objectives of public interest, is hereby excluded. Furthermore, the reference to harmful effects expresses something that is self-evident: when formulating antitrust provisions, the legislature is faced with the task of distinguishing between harmful and harmless restrictions on competition. This task is so self-evident that the antitrust article “unnecessarily” mentions the harmful effects.
50 It is the task of the ordinary legislator to carry out the mandate of the Cartel Act. Internationally, it is common for antitrust offenses to provide for a mixture of form-based and effect-based factors. This is based on the experience that there are particularly anti-competitive behaviors for which a more detailed analysis of the effects would be disproportionate. The solution adopted by the Swiss antitrust legislator, namely a system of general elements, presumptions, and examples of application, is in line with this development. This is consistent with the requirements of the antitrust article of the Federal Constitution. It is the opposing view that is constitutionally questionable: the requirement to carry out a comprehensive impact analysis in each individual case ignores the fact that there are particularly dangerous types of conduct where a more detailed impact analysis is unnecessary. Tying up antitrust resources for an impact assessment in such cases reduces the potential for prosecuting other restrictions on competition. Making the impact analysis absolute thus undermines the requirement laid down in Art. 96 para. 1 FC to provide effective instruments for the protection of competition and thereby ensure a “functioning competitive order.”
51 In summary, it follows that the objective of Art. 96 para. 1 FC does not require an assessment of harmful effects in each individual case, but rather mandates that the legislature enact antitrust provisions that guarantee effective protection of competition in order to prevent harm to the economy and society. The legislature has considerable discretion in choosing or combining form-based and effect-based elements and may also provide for partial prohibitions. However, a general prohibition of cartels subject to authorization (see N. 37 above), which no one would want to introduce, is ruled out by the Cartel Act.
D. “Economically or socially harmful”
52 The discussion about the harmful effects of cartels and other restrictions on competition is generally conducted from an economic perspective. This overlooks the fact that the Cartel Act alternatively refers to “socially harmful effects”. Social aspects played a major role in earlier antitrust laws, as according to the balance theory applicable at the time, social aspects had to be included in a comprehensive bilan économique et social and weighed against economic interests and competition aspects. For example, Article 29 of the 1985 Cartel Act, which enshrined the balance theory in positive law, listed the effects on the regions of the country and the interests of the employees and consumers affected as legal interests to be weighed up. With the abolition of the balance theory, social aspects were removed from the ordinary antitrust proceedings, so that they are now only mentioned in connection with the procedure for exceptional approval by the Federal Council.
53 Such a narrowing of meaning does not do justice to the general requirement in Art. 96 para. 1 FC. The criterion of social harmfulness applies generally to competition law. It underscores the socio-political function of antitrust law, which goes beyond economic functions: antitrust law is intended to prevent the bundling and concentration of economic power in the hands of individuals, since experience has shown that cartels and monopolies, as well as their representatives, also exert considerable influence on political decision-making. The prevention of agreements that restrict competition, abuses of market power, and mergers that restrict competition therefore also has a social dimension.
54 In particular, the mere agreement of cartel agreements, and not just their implementation, creates a cartel-friendly atmosphere that is poisonous for a competitive economy. In a constitutional interpretation (namely with reference to Art. 96 FC), the Federal Supreme Court ruled: “Agreements, and not just the practice of the types of agreements referred to in Art. 5 para. 3 and 4 KG, create a climate of hostility to competition that is ‘economically or socially harmful’ to the functioning of normal competition.” Potential competition must therefore also be protected.
55 Ultimately, the reference to the social damage caused by the formation of cartels establishes a link between a cartel-free market economy and direct democracy: decisions should be taken decentrally, in the economy by the individual players at market level, and in the political sphere ultimately by the citizens. The social dimension of antitrust law thus establishes a link to fundamental principles of statehood and underscores the importance of the mandate in Art. 96 para. 1 FC for the legislature to create a competition-friendly environment.
E. “Cartels and other restrictions on competition”
56 The old antitrust article only referred to “cartels and similar organizations.” Originally, the legislation was therefore only intended to cover cartels in the strict sense (i.e., agreements between competitors that restrict competition, i.e., horizontal competition agreements) and comparable organizations. According to the message accompanying the new economic articles, this was intended to include trusts, for example. Over time, the provision has been interpreted more broadly. The legislators who drafted the 1995 Cartel Act, for example, took the view that the wording allowed for measures “against private restrictions of competition” in general. This included rules against vertical competition agreements (namely those between companies at different market levels, e.g., distribution agreements), the abuse of market power, and anti-competitive mergers, i.e., restrictions of competition that do not necessarily fall under the term “cartels and similar organizations” at first glance.
57 The new antitrust article completely overcame the organizational restriction. Cartel law is no longer to be limited to “cartels and similar organizations,” but is to regulate “cartels and other restrictions on competition” in general. This wording covers all conduct that is usually covered by the term “cartel law,” i.e., rules on (horizontal and vertical) competition agreements, the abuse of market power, and merger control. Furthermore, the wording is sufficiently broad to include new provisions relating to company-specific standards that are aimed at preventing restrictions on competition that are contrary to the functioning of the market. The provision would also be suitable as a basis for competition policy price monitoring if Art. 96 para. 2 lit. a FC did not provide a separate basis for competence, which takes precedence as the more specific rule. This does not exclude price-related restrictions on competition from also falling under general antitrust law, for example in the case of price cartels or abuse of market dominance by dominant players. However, anti-competitive violations of fairness are a matter for unfair competition law. Art. 96 para. 2 lit. b FC is the correct basis for this.
58 EU law provides for control of state aid in Articles 107 et seq. TFEU, which is enshrined in the chapter on “Competition rules” as the fourth pillar of European competition law (alongside the rules on agreements restricting competition, the abuse of dominant positions, and merger control). However, state aid control is not directed at companies but at the subsidising Member States or their subdivisions and is therefore not antitrust law in the strict sense. If the federal legislature wishes to introduce subsidy control, Art. 96 para. 1 FC would therefore not be a suitable basis for competence. However, legislative competence under Art. 95 para. 2 FC may be considered for cantonal and municipal subsidies; for federal subsidies, an implied federal competence must be assumed.
59 It follows from the federal legislature's obligation to enact antitrust provisions (see N. 40 f. above), combined with the conjunction “and” between ‘cartels’ and “other restrictions on competition” in Art. 96 para. 1 FC, that the legislature must enact regulations on all recognized areas of antitrust law. It could not therefore confine itself to rules on cartels and omit vertical competition agreements. It is also obliged to enact provisions on unilateral conduct by undertakings and on merger control.
60 The harmful effects of “cartels and other restrictions on competition” can only be avoided if the antitrust rules are effective. Both the substantive rules and the requirements for institutions and procedures must therefore be designed in such a way that the economic and social damage caused by cartels and other restrictions on competition is prevented or remedied. As regards substantive law, the elements of the offense must not impose excessive requirements on the authorities responsible for applying the law. A distinction must be made between public and private enforcement in relation to institutions and procedures. For public enforcement, there must be adequately resourced authorities and courts with the necessary powers to enforce substantive law within a reasonable time. Effective civil enforcement requires, among other things, that there are no systemic restrictions on standing to sue and that the civil courts respond to the particularly great difficulties of proof in civil antitrust law by making full use of the scope available to them in terms of the standard of proof and the presentation of evidence. Even though Art. 96 para. 1 FC grants the legislature considerable leeway, it must always ensure that the antitrust provisions guarantee effective protection of competition. The antitrust article therefore establishes the principle of effectiveness as a binding requirement for the legislature and those applying the law: substantive law and procedural law must be designed, interpreted, and applied in such a way that the effective enforcement of antitrust law by administrative and private law is not made practically impossible or excessively difficult.
F. “against”
61 The provisions to be enacted shall be directed ‘against’ the economically or socially harmful effects of cartels and other restrictions on competition. The legislature did not use this preposition in the title of the Cartel Act, but chose the wording “Federal Act on Cartels and Other Restrictions on Competition.” The relative pronoun “über” (about) was taken from the Cartel Acts of 1962 and 1985, and thus dates from a time when there was a positive attitude toward cartels. Although the Cartel Act of 1995 marked a fundamental shift toward the protection of effective competition, this change of direction was not reflected in the title of the Cartel Act. The harmful effects of cartels and other restrictions on competition are combated by adopting rules “against” them, as stipulated in the cartel article of the Federal Constitution. The legislature is therefore called upon to change the title of the law to “Federal Act against Cartels and Other Restrictions on Competition,” just as the UWG is called the “Federal Act against Unfair Competition.”
G. Outlook
62 The 2000 Cartel Act reversed the competition policy paradigm: cartels are no longer recognized as a good form of organization, but are classified as a deviation from economic freedom and thus as a threat to the free market economy. Traditionalist circles dispute this change in meaning and adhere to cartel-friendly principles which they derive from the wording of Art. 96 para. 1 FC (namely the “harmful effects”), which the Federal Constitution of 2000 did indeed adopt from the cartel era. In order to avoid such misinterpretations from the outset, it is time to amend Art. 96 para. 1 FC. It is recommended that the provision be worded as follows: “Legislation in the field of antitrust and competition law is a matter for the Confederation.” It is then the task of the legislature to design the rules in such a way that the fundamental public interest in a functioning competitive economy is given appropriate weight.
About the author
Prof. Dr. iur. Andreas Heinemann, graduate economist, DIAP (ENA, Paris), holds a chair in commercial, economic, and European law at the University of Zurich and is a permanent visiting professor at the University of Lausanne. His research focuses on Swiss, European, and international economic law, with a particular interest in antitrust and intellectual property law. He is a member of the board and steering committee of the European Institute at the University of Zurich (EIZ). From 2011 to 2022, he was a member of the Swiss Competition Commission, serving as its president since 2018. The author welcomes feedback on this article at andreas.heinemann@ius.uzh.ch.
Recommended further reading
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Materials
Botschaft des Bundesrates an die Bundesversammlung über eine Partialrevision der Wirtschaftsartikel der Bundesverfassung vom 10.9.1937, BBl 1937 II 833 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1937/2_833_829_719/de, besucht am 15.8.2025.
Bericht des Bundesrates an die Bundesversammlung über das Volksbegehren gegen den Missbrauch wirtschaftlicher Macht vom 8.2.1957, BBl 1955 I 347 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1955/1_365__/de, besucht am 15.8.2025.
Botschaft des Bundesrates an die Bundesversammlung zum Entwurf eines Bundesgesetzes über Kartelle und andere Organisationen vom 18.9.1961, BBl 1961 II 553 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1961/2_553_549_1381/de, besucht am 15.8.2025.
Botschaft zur Volksinitiative «zur Verhinderung missbräuchlicher Preise» vom 9.9.1981, BBl 1981 III 342 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1981/3_342_314_295/de, besucht am 15.8.2025.
Botschaft zu einem Bundesgesetz über Kartelle und andere Wettbewerbsbeschränkungen vom 23.11.1994, BBl 1995 I 468 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1995/1_468_472_389/de, besucht am 15.8.2025.
Botschaft über eine neue Bundesverfassung vom 20.11.1996, BBl 1997 I 1 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/1997/1_1_1_1/de, besucht am 15.8.2025.
Botschaft zur Teilrevision des Kartellgesetzes vom 24.5.2023, BBl 2023, 1463 ff., abrufbar unter https://www.fedlex.admin.ch/eli/fga/2023/1463/de besucht am 15.8.2025.
Preisbildungskommission, Kartell und Wettbewerb in der Schweiz, 31. Veröffentlichung der Preisbildungskommission des Eidgenössischen Volkswirtschaftsdepartements, Bern 1957.