Published 17 Mai 2025
Swiss competition law reaches much further than most foreign businesses realize, regulating your business even if you never intended to operate in Switzerland.
The Swiss “Effects Doctrine” Is Extremely Broad
In Switzerland, your agreement may attract scrutiny under the Cartel Act if it might possibly affect the Swiss market. As explained in Section 1.3.2 of the book, this approach to extraterritorial application is much broader than EU law. Unlike the EU, which requires “immediate, substantial, and foreseeable” effects.
The Swiss Federal Supreme Court established this broad approach in its Gaba/Elmex ruling. For practitioners interested in a detailed discussion of this case, see my article published in Concurrences in 2017, available in open access.
Real-World Example: The Nikon Case
Consider the example discussed in Section 4.3.2.1 of the book from the Nikon case: A simple clause between a US manufacturer and US online retailer that prohibited sales outside the US was enough to violate Swiss competition law. This remains true today – the Swiss Federal Supreme Court has not narrowed this scope at all.
What This Means For Your Business
Even if your agreements do not mention Switzerland or were not intended to regulate or exclude sales into Switzerland:
- Distribution contracts between foreign companies can violate Swiss competition law
- Export bans anywhere in your global network could be unlawful and trigger fines in Switzerland
- You don’t need a Swiss presence to face Swiss fines
Conclusion
To protect your business, carefully examine your distribution network for territorial restrictions and conduct a thorough risk assessment of how these limitations might trigger Swiss competition law – even for agreements made entirely outside Switzerland. Proactive compliance is far less costly than facing potential fines and investigations.