EU/Switzerland C ompetition Law Cooperation Agreement

1. European Parliament ECON Briefing Session, 6.11.2013 EU/Switzerland Competition Law Cooperation Agreement David Mamane, LL.M.

2. 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

3. 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

4. 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?

5. 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

6. 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

7. Thank you for your attention. David Mamane david.mamane@swlegal.ch 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