Antitrust law shapes day-to-day business. It protects effective competition and ensures that companies do not neutralise their freedom through private measures. It harbours risks for companies, but it also presents them with opportunities. The competition authorities enforce antitrust law rigorously.
Certain principles of antitrust law must always be observed, otherwise there is a risk of heavy fines (e.g. in the case of agreements affecting competition on prices, quantities, territory or customer allocation; agreements affecting competition on the fixing of resale prices or “absolute territorial protection”; or abuse of a dominant market position). This may sound simple - but in practice it is often challenging to implement these principles and to recognise violations in good time in specific cases. The devil is in the detail!
Many corporate practices are complex under antitrust law (e.g. licensing agreements, specialisation, research and development agreements; setting up and managing distribution systems; bidding syndicates, consortia and purchasing groups). The permissibility of such practices also depends on the market conditions (definition of the relevant market, determination of market shares), which entails considerable uncertainties. Furthermore, certain practices are only relevant under antitrust law if a company reaches a certain level of market power as a supplier or buyer (abuse of a dominant market position or relative market power).
Despite these uncertainties, the important thing is that antitrust law applies to all companies, including SMEs and small companies, not only to “large corporations”!
Market conditions, specific business relationships and individual practices require careful analysis under antitrust law. It makes sense to do so when business models are being developed, contracts are being negotiated and company takeovers are being planned, and not just at the end of such a process. Antitrust law has a significant influence on business decisions and must be taken into account from the outset, as is also the case with tax or employment law. Antitrust law can be used creatively in development work and negotiations, e.g. to put forward or scrutinise your own needs and to defend your company against any attempts by the opposing party to exert pressure. In short:
Antitrust law helps shape your legal strategy. However, subsequent “patching up” to adapt legal transactions and corporate practices to antitrust requirements is tedious. Antitrust law should therefore not only be perceived as a risk or a restriction of entrepreneurial freedom but also as an opportunity.
Responsibility for compliance with antitrust law lies with company management (executive management, board of directors). However, this insight is of no use if the employees on the front line do not know the basic rules of antitrust law. Employees must therefore receive targeted, level-appropriate and constant training. They do not have to be experts in antitrust law. However, they must know what is definitely prohibited and when they need to inform company management about processes requiring legal advice.
« Antitrust law prevents a number of things, but at the same time makes many things possible. It is important to take the right path at an early stage. We are here to support and help you in this endeavour.
Dr. Daniel Zimmerli
Partner
Training key employees and early advice from an antitrust lawyer can help your company successfully navigate the maze of antitrust regulations and avoid unpleasant surprises. Invest in antitrust advice and compliance measures – it is worth it!
Should your company nevertheless become involved in antitrust violations, you must act quickly. What is the proper conduct during a dawn raid by the competition authorities? What is a leniency application and what are its consequences? How do you react to complaints from business partners? How do you communicate? Immediate assistance from an antitrust lawyer is crucial in these cases. Mistakes made by a company at the beginning of an investigation by the competition authorities can hardly be corrected later on. The same applies if there is a clumsy response to complaints from the market.
Our guidance brochure provides emergency information that will make it easier for you to deal with antitrust issues. Of course, it does not provide any patent remedies. However, it will help your company to recognise where caution is appropriate under antitrust law and where there is a need for legal advice.
This guidance takes you through selected areas of antitrust law that are important in day-to-day business. Its purpose is to show you where obtaining specialised legal advice is worthwhile.
Please also visit our page with general information on the expertise of Wenger Plattner in Competition Law .
daniel.zimmerli@wenger-plattner.ch
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