We can hear more and more that the revision of the Cartels Act would bring Switzerland to an alleged “cartel paradise”. This alarmist rhetoric masks the real issue: how to guarantee effective competition without stifling the business spirit?
Let’s be clear: what economists mean by cartel – the real agreements on prices, quantities or territories – is unambiguously harmful and must continue to be punished. The problem is elsewhere: since the GABA judgment, current practice, too formalist, almost automatically assimilates to a serious offense of agreements between companies even when no negative effect on competition is demonstrated.
Some people think that the state must intervene to lower prices. The economy is convinced that only healthy competition has permanently price and high quality. This is also the founding principle of cartels law: sanctioning actually harmful behavior and letting neutral or beneficial cooperation live. Interventions must therefore remain targeted and proportionate – not replace the market. If some cartels are really harmful, proving the effects should not be a problem.
The revision aims precisely to correct this imbalance. Rather than sanctioning according to purely formal criteria, it is a question of assessing the concrete effects on competition. This method – in force in the EU and elsewhere – makes it possible to distinguish harmful cartels from useful cooperation. Yes, the EU is experiencing fundamental restrictions prohibited in itself. However, these restrictions are strictly delimited: in the case of vertical agreements, they apply exceptionally, and not for dominant companies, where an impact analysis is always necessary. The EU court recalls that so -called “object” agreements must be interpreted in a very restrictive manner and that the evaluation of the concrete effects remains the rule.
The current practice strikes in particular SMEs. Although they have limited market shares and rarely influence competition in a perceptible manner, they are found in the viewfinder due to a formalist application of the law. Not having specialized legal departments, they give up cooperation – while these projects would be essential to strengthen their competitiveness in the face of international competition.
Revision modernizes cartels law and puts proportionality in the center. It does not seek to excuse abuse, but to concentrate regulation on truly harmful behaviors. Those who denounce a step backwards are mistaken. True conservatism consists in maintaining a system unsuitable for economic realities.
A law enforcement that prohibits cooperation without negative effect on competition does not benefit consumers or businesses. However, a market that works is the best guarantor of competitive price. Parliament has the opportunity today, with the balanced compromise of the National Council, to provide a lasting solution: to sanction real abuses, to encourage useful cooperation and give Switzerland a right of cartels adapted to future challenges.
This article appeared in Agefi on August 21, 2025.