COMPETITION AND ANTITRUST
RC: To what extent have authorities in your region intensified their enforcement of antitrust regulations?
Broadhurst: The Competition and Markets Authority (CMA), the new UK competition authority created by the Enterprise and Regulatory Reform Act 2013 (ERRA 2013), became fully operational on 1 April 2014. ERRA 2013 included various amendments to the UK regime, two of which are particularly significant for antitrust enforcement. The first is a new – potentially very wide – power for the CMA to interview individuals having a ‘connection with’ a business being investigated on any matter relevant to the investigation; this interview can potentially take place without the business’ lawyers being present. The second is the removal of the dishonesty requirement from the criminal cartel offence – intended to increase the rate of successful prosecution, this has caused unhelpful uncertainty. Finally, sectoral regulators have been put on notice to make more use of their competition law powers or risk losing them; and this will include the Financial Conduct Authority (FCA) which will obtain wide-reaching competition law enforcement powers in April 2015.
Zurkinden: Given that the protection of competition is one the most important regulatory tasks in a market economy, the competition authorities in Switzerland are very active in uncovering and investigating potential restrictions on competition. While statistics show that the authorities’ activities in enforcing antitrust regulation are comparable with those of previous years, some industry sectors like construction and financial services were particularly in the authorities’ focus. In 2013, the authorities’ work continued to focus particularly on hard cartels, some involving bid rigging and market foreclosure. It concluded several investigations into price-fixing agreements in the field of aviation, bid rigging in the road-construction industry in the Canton of Zurich and into restraints on parallel imports of French-language books. Currently in the spotlight are several investigations in the financial sector. Since 2012, the competition authorities have carried out a full scale investigation into alleged agreements to influence the reference interest rates Libor, Tibor and Euribor, as well as derivatives based on these rates, and in 2014, following a preliminary investigation, the competition authorities opened an investigation against four Swiss and four foreign banks in relation to alleged price fixing agreements in the foreign exchange sector. Finally, the authorities have also examined credit card interchange fees.
Oct-Dec 2014 Issue
Marval, O’Farrell & Mairal
Norton Rose Fulbright Australia
Pinheiro Neto Advogados
Simmons & Simmons