To date, no specific legislation regarding ESG measures/sustainability agreements exists under Swiss Competition Law.

However, the Cartel Act mentions more efficient exploitation of resources as one of the potential economic justifications for agreements affecting competition. This justification is generally available to all agreements significantly restricting competition in the relevant market(s) as long as effective competition is not entirely eliminated. More efficient exploitation of resources is, generally, understood to be the basis for the assessment of sustainability-enhancing measures and agreements under Swiss competition law. However, it must be noted that the scope of this economic justification is relatively narrow (in particular in contrast to recent developments in the EU and some of its members' states): According to the limited – and already quite aged – case law (see our response to "Are there precedents that involved ESG/sustainability matters in your country? If so please provide a short description." below), but also more recent statements and publications by members of the Competition Commission ("ComCo"), efficiency gains are only relevant if they are "sufficiently closely linked either to the production process of the parties involved in the agreement or to the relevant product itself". As a result, projects supporting ESG/sustainability goals in a more general way would not fall under the justification of more efficient exploitation of resources.

Furthermore, the economic efficiency justification is subject to the proportionality test: according to this general principle of public law, measures must be suitable, constitute the least harmful restriction to effective competition in order to meet the sustainability goal, and be proportional overall.

ESG measures/sustainability agreements that are not justified under the Cartel Act may nevertheless obtain exceptional authorization by the Federal Council (see our response to "Can parties seek specific guidance from authorities on proposed ESG initiatives?" below).

We do not currently expect any specific new regulations to come into place in 2022.

No.

No specific guidance has yet been published.

Swiss competition law generally refers to the relevant EU regulation with regard to the assessment of competitor collaborations (Horizontal Guidelines), which are currently under revision in the EU and which are expected to explicitly deal with horizontal cooperations in the context of ESG/sustainability. It remains to be seen if and to what extent Swiss competition law will follow the new EU regulation in the field of ESG/sustainability.

To date, no specific procedure exists before the competition authorities for undertakings seeking guidance regarding proposed ESG initiatives.

However, undertakings can obtain (some) legal certainty for envisaged initiatives by use of the existing tools:

• Consultation by the Secretariat of the ComCo: The ComCo Secretariat offers paid consultation services to undertakings for questions regarding the application of competition law. This tool may also be used for a legal assessment of ESG initiatives by the ComCo Secretariat. The Secretariat's consultation is, technically, not binding on the ComCo or the courts. Nevertheless, in practice, the consultations (the anonymized version of which may be published) offer undertakings a substantial degree of legal certainty.
• Objection procedure: Undertakings may submit a notification of restraint of competition before it takes effect. If the ComCo does not object within 5 months, the potential sanction risk is waived. However, the procedure is currently rarely used in practice (for various reasons) but may be amended in the course of the pending revision of the Cartel Act.
• Exceptional authorization by the Federal Council: Restraints of competition that cannot be justified under the current law (e.g. due to a lack of a sufficiently close link between the ESG/sustainability efficiency and the production procedure or product, see Section 1 above) can, however, be authorized in exceptional cases by the Federal Council. To date, this procedure has rarely been used by undertakings.

Economic efficiencies may only justify competition restraints if they at least compensate, if not overcompensate, the negative effects on competition. However, no specific legislation nor guidance exists regarding the complex question of the quantification or calculation of ESG effects.

While the current competition law regime and its interpretation by the competition authorities do quite clearly reject any general advantage to society or the planet overall, less clarity exists as to in which markets the claimed specific advantages must be shown.

See our response to "Are ESG measures/sustainability agreements included in your jurisdictional competition regime?". 

• "Klimarappen" ("climate cent"), 2004: The Swiss Oil Association contemplated implementing an agreement between crude oil importers to charge a fee of one to two cents on the sale of gasoline and diesel on the sales price. The earnings were to be donated to a foundation active in the reduction of CO2. The ComCo rejected the existence of a sufficiently close connection between the agreement and the production methods and products in its report and considered the suggested "Klimarappen"-agreement unlawful.
• Swico/Sens, 2005: A large number of manufacturers and importers of electronic devices, who are by law obligated to take back and recycle their products, commissioned the recycling to two providers, Swico and Sens. The manufacturers agreed to levy a small, but fixed advance recycling fee on their products sold. Swico and Sens further agreed with each other on which provider would recycle which types of products. The ComCo confirmed in its decision, among others, that "ecological parameters" and the protection of the environment could be considered efficiencies under the Cartel Act if there was a sufficiently close link between the production methods and products. In the end, however, ComCo left open whether these conditions were met by the recycling system in question, as the system was justified in either case due to the cost reductions. 
• Sammelrevers, 2001: The so-called Sammelrevers was a price-fixing system, primarily for publishers from the German-speaking area. Through this system, individual booksellers were required to oblige with the retail prices of books set forth in the Sammelrevers. At that time, around 90% of the books on sale were covered by the Sammelrevers. The defense argued that the system was justified as efficient as it promotes the distribution of knowledge-bearing and knowledge-transmitting books, and, therefore, the dissemination of knowledge. The ComCo rejected the efficiency justification of more efficient use of resources (e.g. improved production and distribution).
• ASCOPA, 2011: The Association of Manufacturers, Importers, and Suppliers of Cosmetic and Perfumery Products ("ASCOPA") and its associated members exchanged sensitive information (pricing, revenues, advertising expenditures, terms and conditions) amongst each other. This led the ASCOPA to adapt their behavior in a way harmful to competition. While ComCo acknowledged that the sharing of information does save resources, it noted that compared to commissioning market studies, the savings were negligible. The ComCo rejected the efficiency defense in the present case as the negligible savings did not offset the higher prices causing considerable economic damage to competition.
• Santésuisse, 2014: Santésuisse, a leading industry organization of Swiss health insurers in the social health insurance industry, entered into an agreement to discontinue the use of call centers (cold-calls), to lower the compensation of brokers and intermediaries and establish certain quality standards. While ComCo considered that the discontinuation of cold-calling could be seen as more efficient use of resources, the discontinuation would at the same time lead to resources not being used. In addition, ComCo held that the measures did not lead to an optimization of the distribution, and rejected the efficiency justification.

Victims of unlawful restraint of competition may have civil claims, in particular for damages or to obtain unlawfully earned profits. Civil antitrust litigation is generally still considered rare in Switzerland, yet with a few exceptions. So far, no class action exists in Switzerland.

A revision of the Cartel Act is currently pending, which among others aims to strengthen civil antitrust litigation in Switzerland.