COMCO publishes the revised Verticals Notice and its Explanations

14 December 2022 – The Swiss Competition Commission today published the revised Verticals Notice and its accompanying explanations. The new rules will come into force on 1 January 2023. Companies have one year to adapt their distribution to the new regulation. The revised rules are primarily intended to implement the corresponding changes to the regulation of vertical agreements in the European Union, which came into force on 1 June 2022. In addition, the revised Verticals Notice and its explanations provide for further tightening of the European rules, which is highly significant for practice.

According to Art. 6 of the Swiss Cartel Act (Cartel Act), the Swiss Competition Commission (COMCO) can define in general notices the conditions under which individual types of competition agreements are generally considered to be justified for reasons of economic efficiency within the meaning of Art. 5 para. 2 of the Cartel Act. If there is a need for more legal certainty, it may also publish other principles of the application of the law in general notices in analogous application of Art. 6 of the Cartel Act.

In carrying out this task, the COMCO has revised its Notice on the Assessment of Vertical Agreements under Swiss Competition Law of 28 June 2010 (Vertical Notice) and the accompanying explanations of 12 June 2017 (Explanations).

The revision was primarily prompted by the adoption of the new Regulation (EU) 2022/720 of the European Commission (Commission) of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (Vertical Block Exemption Regulation; VBER). This entered into force on 1 June 2022, including the accompanying Guidelines on Vertical Restraints (VBER Guidelines).

With the revised Verticals Notice and the Explanations, the COMCO has now incorporated those changes that resulted from the entry into force of the new Verticals Block Exemption Regulation and the VBER Guidelines. In addition, the new Verticals Notice and the Explanations provide for various, highly practice-relevant changes that allegedly resulted from the case law of the Swiss courts. As far as can be seen, all of these changes are more stringent than the regulations in force in Europe.

We will go into more detail about the most important changes resulting from the new Swiss rules in a series of individual short articles, which we will also publish here.