Swiss Federal Administrative Court annuls cartel fine against Immer AG
On November 14, the Swiss Federal Administrative Court (FAC) decided that Immer AG, a distributor of door parts, has not participated in a cartel formed by six of its competitors to fix prices. Hence, the court annulled the cartel fine imposed against Immer by the Swiss Competition Commission (ComCo).
Six distributors of door parts had met annually to discuss a complex multi-level pricing model for various product groups. Immer was invited only once, and it participated in that meeting in a purely passive manner. The FAC recognized that one cannot infer knowing and willing participation in an agreement to fix prices from a passive attendance of only one meeting.
The decision is final and binding. It is a very welcome precedent particularly given that the FAC thoroughly discusses the concepts of "agreement" and "concerted practice". The question whether there is an agreement has become ever more important since the Swiss Federal Supreme Court has recently decided in favor of de facto illegality of certain types of agreements.
Immer was represented by VISCHER (Klaus Neff, Partner and Dr. Thomas Steiner, Senior Associate) in the proceedings before the ComCo and the FAC.