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  • 1.

    Relevant legislation
    What is the relevant legislation?

  • 2.

    Relevant institutions
    Which authority investigates cartel matters? Is there a separate prosecution authority? Are cartel matters adjudicated or determined by the enforcement agency, a separate tribunal or the courts?

  • 3.

    Have there been any recent changes, or proposals for change, to the regime?

  • 4.

    Substantive law
    What is the substantive law on cartels in the jurisdiction?

  • 5.

    Industry-specific provisions
    Are there any industry-specific infringements? Are there any industry-specific defences or antitrust exemptions? Is there a defence or exemption for government-sanctioned activity or regulated conduct?

  • 6.

    Application of the law
    Does the law apply to individuals or corporations or both?

  • 7.

    Does the regime extend to conduct that takes place outside the jurisdiction? If so, on what jurisdictional basis?

  • 8.

    Export cartels
    Is there an exemption or defence for conduct that only affects customers or other parties outside the jurisdiction?

  • 9.

    Steps in an investigation
    What are the typical steps in an investigation?

  • 10.

    Investigative powers of the authorities
    What investigative powers do the authorities have? Is court approval required to invoke these powers?

  • 11.

    Inter-agency cooperation
    Is there cooperation with authorities in other jurisdictions? If so, what is the legal basis for, and extent of, cooperation?

  • 12.

    Interplay between jurisdictions
    Which jurisdictions have significant interplay with your jurisdiction in cross-border cases? If so, how does this affect the investigation, prosecution and penalising of cartel activity in cross-border cases in your jurisdiction?

  • 13.

    How is a cartel proceeding adjudicated or determined?

  • 14.

    Burden of proof
    Which party has the burden of proof? What is the level of proof required?

  • 15.

    Circumstantial evidence
    Can an infringement be established by using circumstantial evidence without direct evidence of the actual agreement?

  • 16.

    Appeal process
    What is the appeal process?

  • 17.

    Criminal sanctions
    What, if any, criminal sanctions are there for cartel activity?

  • 18.

    Civil and administrative sanctions
    What civil or administrative sanctions are there for cartel activity?

  • 19.

    Guidelines for sanction levels
    Do fining or sentencing principles or guidelines exist? If yes, are they binding on the adjudicator? If no, how are penalty levels normally established? What are the main aggravating and mitigating factors that are considered?

  • 20.

    Is debarment from government procurement procedures automatic, available as a discretionary sanction, or not available in response to cartel infringements? If so, who is the decision-making authority and what is the usual time period?

  • 21.

    Parallel proceedings
    Where possible sanctions for cartel activity include criminal and civil or administrative sanctions, can they be pursued in respect of the same conduct? If not, how is the choice of which sanction to pursue made?

  • 22.

    Private damage claims
    Are private damage claims available for direct and indirect purchasers? What level of damages and cost awards can be recovered?

  • 23.

    Class actions
    Are class actions possible? If yes, what is the process for such cases? If not, what is the scope for representative or group actions and what is the process for such cases?

  • 24.

    Is there an immunity programme? If yes, what are the basic elements of the programme? What is the importance of being ‘first in’ to cooperate?

  • 25.

    Subsequent cooperating parties
    Is there a formal partial leniency programme for parties that cooperate after an immunity application has been made? If yes, what are the basic elements of the programme? If not, to what extent can subsequent cooperating parties expect to receive favourable treatment?

  • 26.

    Going in second
    What is the significance of being the second cooperating party? Is there an ‘immunity plus’ or ‘amnesty plus’ option?

  • 27.

    Approaching the authorities
    Are there deadlines for initiating or completing an application for immunity or partial leniency? Are markers available and what are the time limits and conditions applicable to them?

  • 28.

    What is the nature, level and timing of cooperation that is required or expected from an immunity applicant? Is there any difference in the requirements or expectations for subsequent cooperating parties?

  • 29.

    What confidentiality protection is afforded to the immunity applicant? Is the same level of confidentiality protection applicable to subsequent cooperating parties? What information will become public during the proceedings and when?

  • 30.

    Does the investigating or prosecuting authority have the ability to enter into a plea bargain, settlement or other binding resolution with a party to resolve liability and penalty for alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?

  • 31.

    Corporate defendant and employees
    When immunity or partial leniency is granted to a corporate defendant, how will its current and former employees be treated?

  • 32.

    Dealing with the enforcement agency
    What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with the enforcement agency?

  • 33.

    Policy assessments and reviews
    Are there any ongoing or anticipated assessments or reviews of the immunity/leniency regime?

  • 34.

    What information or evidence is disclosed to a defendant by the enforcement authorities?

  • 35.

    Representing employees
    May counsel represent employees under investigation in addition to the corporation that employs them? When should a present or past employee be advised to obtain independent legal advice?

  • 36.

    Multiple corporate defendants
    May counsel represent multiple corporate defendants? Does it depend on whether they are affiliated?

  • 37.

    Payment of penalties and legal costs
    May a corporation pay the legal penalties imposed on its employees and their legal costs?

  • 38.

    Are fines or other penalties tax-deductible? Are private damages awards tax-deductible?

  • 39.

    International double jeopardy
    Do the sanctions imposed on corporations or individuals take into account any penalties imposed in other jurisdictions? In private damage claims, is overlapping liability for damages in other jurisdictions taken into account?

  • 40.

    Getting the fine down
    What is the optimal way in which to get the fine down? Does a pre-existing compliance programme, or compliance initiatives undertaken after the investigation has commenced, affect the level of the fine?

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Meyerlustenberger Lachenal Ltd. (MLL) is one of the most reputable international business law firms in Switzerland. Our over 100 experienced and dynamic lawyers form a strong team of specialists that stand for innovative and solution-focused services.

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T: +41 21 310 40 20
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