Switzerland: Swiss Competition Law - Landmark Decision by the Supreme Court

Facts. On December 16 2002 the Federal Competition Commission ("FCC") had cleared the acquisition by the Edipresse group of two daily newspapers distributed in the Canton of Vaud. Etablissement Cherix (an entity of the Hersant group, and a competitor of Edipresse) had appealed the FCC clearance. The Appeal Commission denied Etablissement Cherix, and third parties generally, the right to appeal an FCC clearance decision regarding concentrations. Further to the Etablissements Cherix' appeal, the Federal Supreme Court confirmed the Appeal Commission ruling.

Held. The question of third parties' right to appeal decisions regarding concentrations has been controversial by reason of the lack of clarity of the Competition Act. On the one hand the Competition Act clearly states that only the undertakings involved in the contemplated merger are parties to the merger control investigations. On the other hand the administrative procedure rules provide any person with a legitimate interest with the right to appeal administrative decisions.

Based on legislative working documents, the Supreme Court held that the intention of the legislator was to exclude third parties (generally) from the merger control proceedings. It based its decision on the following main considerations: (i) the clear intention of the legislator was to have fast merger control proceedings in the interests of the Swiss economy in general; (ii) to admit the right to appeal for third parties who are not entitled to take part in the investigation proceedings would result in the transfer of the debate in the appeal proceedings; (iii) to admit the right for third parties to appeal would substantially impact merger processes in Switzerland considering that appeals suspend the implementation of the contemplated merger.

This decision by the Supreme Court constitutes a landmark decision to the extent it eventually states that third parties have no right to appeal decision regarding concentrations irrespective of any legitimate interest they may have. The Swiss solution differs from European Competition law, where third parties that are directly and individually concerned may appeal a clearance decision.