Published 11 Mai 2025
The Swiss Federal Court held in its ruling of 23 January 2025 (2C_244/2022) that for behaviour to violate competition law, it must actually be capable of harming competition based on real circumstances—not just in theory. Competition authorities must now show genuine potential harm rather than just pointing out concerning contract language. The “SIX judgment” (ruling 2C_596/2019 that we have discussed in Section 5.3.3.1 of Competition Law in Switzerland) was clarified to mean that specific behavior, according to the “effects-based approach,” must be effectively potentially capable of causing competitive harm or a displacement effect. The danger of adverse competitive effects must actually exist based on all specific circumstances. This decision brings Swiss law closer to EU standards and creates clearer rules for companies in a dominant position.
Medical Database Provider’s Contracts Under Scrutiny
The case involved HCI Solutions AG, a company that created and sold pharmaceutical information through databases called “Compendium” and various “INDEX databases” for different healthcare professionals. These databases provided detailed, computer-readable drug information that doctors, pharmacists, and hospitals used when prescribing medications. HCI Solutions had contracts with software companies to integrate data into their programs, healthcare providers to use the databases, and pharmaceutical companies to publish their drug information. The Swiss Competition Commission (COMCO) found HCI misused its dominant position, with over 90% market share, through restrictive contract terms. The Federal Administrative Court largely agreed but reduced the fine from CHF 4.5 million to CHF 3.8 million.
Single Contract Restriction Found Lacking any Harmful Effect on Competition
The Federal Court rejected claims that an exclusive purchasing requirements clause, found in only one of 176 contracts with software companies, was abusive. The clause was acceptable because it affected such a small part of the market and didn’t completely ban purchasing from competitors. With 175 other software companies free from this restriction, competitors had plenty of opportunity to distribute their data through other channels. The Court also noted that the affected software company said it never felt limited by the clause. The Court emphasized that a clause’s mere existence isn’t enough to violate the law—what matters is its actual impact on the market.
Partial Prohibition of Similar Data Structures Found Anti-Competitive
The Court did partially uphold previous finding of abusive conduct about another contractual clause which stopped software companies from using third-party data “structured the same as or substantially similar to” HCI’s data structure. This clause appeared in 83 of 176 contracts and was found partly unlawful—specifically the part about “substantially similar” structures. The Court made an important distinction: copyright legitimately protected against directly copying HCI’s XML structure,making that part of the clause is exempt from competition law scrutiny, but banning similar structures went too far and unfairly restricted competitors. By preventing competitors from creating databases with similar structures, HCI made it unnecessarily difficult for them to enter the market without building completely new data structures. This restriction in about half of software company contracts created a real potential for blocking competition. The Court’s careful approach resulted in a much narrower prohibition than originally ordered.
SFC Rejects Two Other Type of Abuse
The Court also rejected two more claims of abuse. First, HCI’s practice of bundling quality control services with publication services was not found abusive because these weren’t separate products but parts of one integrated service. Second, HCI’s free upload service to the AIPS database wasn’t abusive because it was such a minor service that no separate market existed for it. In both cases, the Court found that what HCI bundled together made sense as a package from a business perspective.