European Parliament ECON Briefing Session, 6.11.2013
EU/Switzerland Competition Law
Cooperation Agreement
David Mamane, LL.M.
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
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Thank you for your attention.
David Mamane
[email protected]
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
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D.Mamane, Partner, Schellenberg Wittmer Ltd, Zurich