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

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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

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Potential issues (2/3)

> 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?

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Potential issues (3/3)

> 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

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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

EU/Switzerland cooperation agreement competition policy enforcement 6 November 2013 Page 7/7

David Mamane

david.mamane@swlegal.ch

Schellenberg Wittmer Ltd / Attorneys at Law

Löwenstrasse 19

P.O. Box 1876

8021 Zurich / Switzerland

T +41 44 215 5252

F +41 44 215 5200

Thank you for your attention.