COMCO publishes reasoned Discontinuation Order on Relative Market Power in the Automotive Sector

COMCO publishes reasoned discontinuation order on relative market power in the motor vehicle sector

By decision of 30 June 2025, the Swiss Competition Commission (COMCO) discontinued its investigation against BMW (Switzerland) AG after BMW had extended or newly concluded contracts with the reporting dealer. At the same time, following a summary substantive review, COMCO imposed procedural costs of CHF 121,345 on BMW. 
In early October, COMCO published the reasoned discontinuation order.

Background

The dispute concerned whether BMW held relative market power over a long-standing partner and abused that position. Specifically, it involved the non-renewal or termination of certain dealer, service, and used-car contracts as of 30 September 2023, as well as a dealer contract that had only been extended until the end of 2025. In July 2024, BMW adjusted its conduct and extended or supplemented key contracts until the end of 2028. As a result, the alleged abuse ceased to exist at the time of the decision, and the proceedings were discontinued as moot.

Considerations

For the allocation of costs, COMCO summarily examined whether there had been an abuse before BMW’s change in conduct. It answered this in the affirmative: BMW had allegedly refused or failed to renew business relationships without legitimate business reasons, even though the contracting partner was dependent due to significant BMW-induced investments and the lack of reasonable alternatives.
To assess this dependency, COMCO placed particular emphasis on the amount, purpose, and timing of the claimed investments, BMW’s role in prompting them, as well as the amortization horizon and the possibility of alternative use. This approach contrasts with the practice of the German Federal Court of Justice (BGH) in the Opel Blitz case, according to which the lack of reasonable alternatives must be determined without considering any investments made by the dealer.

Assessment

The case highlights the relevance of relative market power in investment-intensive sectors. Even below the threshold of classical market dominance, contract terminations or non-renewals may constitute abusive conduct.
Companies that may hold relative market power should carefully document investment incentives and alternatives, communicate in a timely manner, and, where appropriate, provide transitional solutions. Contractual partners, in turn, should minimize dependencies and substantiate their investments, amortization plans, and lack of alternatives with solid evidence.

The decision is available here (in German only).