Proposal for a COUNCIL DECISION on the signing of an Agreement between the European Union and the Swiss Confederation concerning cooperation on the application of their competition laws
Date: 2012-06-01
Institutions: European Commission
Subjects: Switzerland, competition law, competition policy, cooperation agreement (EU), signature of an agreement

EUROPEAN COMMISSION 

Brussels, 1.6.2012  
COM(2012) 244 final 

2012/0126 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing of an Agreement between the European Union and the Swiss 
Confederation concerning cooperation on the application of their competition laws 

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EXPLANATORY MEMORANDUM 

The  European  Union  has  concluded  bilateral  cooperation  agreements  in  order  to 
structure  and  facilitate  the  cooperation  between  the  Commission  and  foreign 
competition  authorities.  There  are  four  such  agreements,  with  the  US1  (1991), 
Canada2  (1999),  Japan3  (2003)  and  South  Korea  (2009)4.  All  these  agreements  are 
so-called  "first  generation"  agreements;  they  contain  various  instruments  of 
cooperation in the area of competition policy but exclude the exchange of evidence. 
These agreements can be regarded as successful. Their main benefit is that they put 
case  related  cooperation  and  the  policy  dialogue  into  a  structured  framework  and 
thereby contribute to a more efficient competition law enforcement. 

However, these  existing  cooperation agreements expressly exclude the exchange of 
protected  or  confidential  information.  This  means  in  practice  that  no  information 
obtained  through  the  formal  investigative  process  can  be  shared  with  the  other 
authority without the specific consent ("waivers") of the company that provided the 
information.  The  absence  of  any  possibility  to  exchange  confidential  or  protected 
information  under  a  "first  generation"  cooperation  agreement  is  regarded  as  the 
major deficiency of this type of agreements, especially in cartel investigations.5 

The  EU  and  Switzerland  are  two  very  important  economic  partners,  whose 
economies  are  deeply  integrated.  As  a  result,  many  anticompetitive  practices  have 
cross border effects on trade between the EU and Switzerland. Many cases dealt with 
by  the  Commission  concern  practices  which  involve  Swiss  firms  and/or  affect  the 
Swiss market. Similarly, there is clear evidence showing that certain anticompetitive 
practices  taking  place  in  Switzerland,  and  especially  cartels,  also  affect  the  EU 
markets.  The  Swiss  Competition  Commission  and  the  Commission  have  already 
cooperated  in  a  certain  number  of  cases  outside  the  framework  of  a  formal 
agreement.  As  in  the  case  of  "first  generation"  agreements,  this  cooperation  is 
significantly limited by the fact that they cannot exchange confidential information. 

This agreement between the EU and the Swiss Confederation concerning cooperation 
on the application of their competition laws addresses this limitation by allowing the 
Commission  and  the  Swiss  Competition  Commission  to  exchange  confidential 
information. Like the "first generation" agreements concluded so far, this agreement 
will help to structure cooperation and a policy dialogue on competition matters with 
the  Swiss  authorities.  By  including  the  possibility  to  exchange,  subject  to  specific 
conditions,  confidential  information  between  the  competition  agencies  of  both 
Parties, the Agreement will also enable the Commission to benefit from the results of 
information gathered by the Swiss Competition Commission. 

Agreement  between  the  European  Community  and  the  Government  of  the  United  States  of  America 
regarding the application of their competition laws, OJ L 95, 27.4.95, pp. 47 – 52 as corrected by OJ L 
131, 15.6.95, pp. 38 – 39. 
Agreement  between  the  European  Communities  and  the  Government  of  Canada  regarding  the 
application of their competition laws, OJ L 175, 10.07.1999. 
Agreement between the European Community and the Government of Japan concerning cooperation on 
anticompetitive activities, OJ L 183, 22/07/2003, p. 0012 – 0017. 
Agreement  between  the  European  Community  and  the  Government  of  the  Republic  of  Korea 
concerning cooperation on anticompetitive activities, OJ L 202, 04.08.2009, p 36-41. 
Cooperation  between  Competition  Agencies  in  Cartel  Investigations,  Report  to  the  ICN  Annual 
conference, Moscow, May 2007, p. 5. 

(1) 

(2) 

(3) 

(4) 

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(5) 

(6) 

(7) 

(8) 

The  implementation  of  this  agreement  will  be  facilitated  by  the  already  existing 
convergence  between  the  two  competition  enforcement  systems.  EU  and  Swiss 
substantive rules are very similar, which means that the Commission and the Swiss 
authority  are  more  likely  to  investigate  the  same  practices  and  to  have  information 
that is relevant to the other party's investigation. They also have similar investigative 
powers.  As  a  result,  the  type  and  scope  of  information  that  they  may  collect  and 
share  is  equivalent.  Both  enforcement  systems  foresee  comparable  sanctions:  they 
impose administrative sanctions on undertakings only and individuals can neither be 
prosecuted  nor  be  fined.  Furthermore,  both  systems  recognise  similar  procedural 
rights of the parties and the rights of legal privilege and non self-incrimination. 

On  26  November  2011,  the  Council  authorised  the  Commission  to  negotiate  this 
agreement  with  the  Swiss  Confederation.  After  ten  rounds  of  negotiations,  the 
negotiations were completed on 7 December 2011. The agreement addresses all the 
elements of the Council negotiation directives. 

First,  this  agreement  contains  the  provisions  that  are  found  in  the  cooperation 
agreements that have been concluded so far with the US, Canada, Japan and Korea. It 
contains provisions on the notification of enforcement activities which significantly 
affect  the  important  interest  of  the  other  party;  provisions  organising  the  practical 
cooperation  between  the  Commission  and  the  Swiss  Competition  Commission  and 
provisions on negative and positive comity. 

Secondly,  the  agreement  regulates  the  discussion  and  transmission  of  information 
between the Commission and the Swiss Competition Commission. It authorises the 
Commission  and  the  Swiss  Competition  to  discuss  information  obtained  by 
investigative  process.  Furthermore,  both  authorities  may  under  certain  conditions 
transmit  information  already  in  their  possession  and  obtained  by  investigative 
process to the other authority. They can only do so when they investigate the same or 
related  conduct  or  transaction.  The  agreement  provides  that  they  cannot  discuss  or 
transmit  information  which  was  received  under  their  respective  leniency  or 
settlement  procedures,  without  the  prior  express  agreement  of  the  source.  Nor  can 
they exchange information if using such information would be prohibited under the 
procedural rights and privileges guaranteed under their respective laws. The decision 
to transmit information is always in the discretion of the transmitting authority; there 
is no obligation to do so. 

(9) 

(10) 

In line with the negotiation directives, the agreement lays down rules regarding the 
use  of  the  information  thus  discussed  or  transmitted.  The  information  obtained  by 
investigative process which is discussed or transmitted under the agreement can only 
be used by the receiving authority for the enforcement of its competition rules to the 
same  or  related  conduct  or  transaction,  and  for  the  purpose of  the  relevant  request, 
when applicable. In addition, no information discussed or transmitted shall be used to 
impose any type of sanctions, whether custodial or not, on natural persons. 

The  agreement  also  contains  provisions  on  the  protection  of  the  information 
discussed or transmitted: The  Commission and the Swiss Competition Commission 
must  keep  this  information  confidential  under  their  own  rules.  On  this  point,  the 
Commission is satisfied that the Swiss rules on confidentiality are comparable to the 
EU ones and therefore that business secrets and other confidential information that it 
may transmit to the Swiss Competition Commission will enjoy an adequate level of 

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protection. When implementing this agreement, both authorities shall also ensure the 
protection of personal data, under their respective laws on personal data. The Swiss 
rules  can  be  considered  to  be  equivalent;  the  Commission  has  taken  a  decision 
concluding  that  Switzerland  generally  provides  an  adequate  level  of  protection  for 
personal data transferred from the EU.6 

(11) 

Finally,  the  agreement  allows  the  disclosure  of  information  transmitted  under  the 
agreement  in  certain  limited  circumstances,  such  as  for  the  procedure  of  access  to 
file,  for  court  procedures,  and  to  national  competition  authorities  and  the  EFTA 
Surveillance Authority, when disclosure of important documents to these agencies is 
required for the adoption of a Commission decision. 

6 

The Commission took a decision concluding that the Swiss rules on the protection of personal data are 
equivalent to the EU one: Commission decision of 26 July 2000 on the adequate protection of personal 
data provided in Switzerland, OJ 2000 L 215, p. 1). 

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2012/0126 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing of an Agreement between the European Union and the Swiss 
Confederation concerning cooperation on the application of their competition laws 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the European Union, 

Having regard to the Treaty on the Functioning of the European Union, and in particular the 
first subparagraph of Article 207(3), in conjunction with Article 218(5) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

On  26  November 2010  the  Council  authorised  the  Commission  to  open  negotiations 
with the Swiss Confederation . 

(2) 

The negotiations with the Swiss Confederation have been completed.  

(3) 

The Agreement should be signed subject to its conclusion, 

HAS ADOPTED THIS DECISION: 

Article 1 

The  signing  of  the  Agreement  between  the  European  Union  and  the  Swiss  Confederation 
concerning cooperation on the application of their competition laws is hereby authorised on 
behalf of the Union, subject to the conclusion of the said Agreement7.  

The President of the Council is hereby authorised to designate the person empowered to sign 
the Agreement on behalf of the Union subject to its conclusion. 

Article 2 

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The text of the Agreement will be published together with the decision on its conclusion. 

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Article 3 

This Decision shall enter into force on the date of its adoption.  

Done at Brussels,  

For the Council 
The President 

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ANNEX 

Agreement  between  the  European  Union  and  the  Swiss  Confederation  concerning 
cooperation on the application of their competition laws 

The  Swiss  Confederation  (hereinafter  referred  to  as  "Switzerland")  of  the  one  part,  and  the 
European Union (hereinafter referred to as "the Union") of the other part, hereinafter referred 
to as "Party" or "Parties"; 

Considering  the  close  relations  between  Switzerland  and  the  Union  and  recognising  that 
cooperation  on  addressing  anticompetitive  activities  will  contribute  to  improving  and 
strengthening their relationship; 

Noting that the sound and effective enforcement of competition law is a matter of importance 
to  the  efficient  operation  of  their  respective  markets,  as  well  as  to  economic  welfare  of 
consumers of both Parties and trade between them; 

Bearing in mind that the Swiss and the Union competition enforcement systems are based on 
the same principles and provide for similar rules; 

Noting  the  revised  Recommendation  of  the  Council  of  the  Organization  for  Economic 
Cooperation  and  Development  Concerning  Cooperation  between  Member  Countries  on 
Anticompetitive Practices Affecting International Trade, adopted on July 27 and 28, 1995; 

Recognizing that cooperation and coordination, including the exchange of information and in 
particular the transmission of information that has been obtained by the Parties in the course 
of  their  investigative  processes,  will  contribute  to  a  more  effective  enforcement  of  the 
competition laws of both Parties. 

Have agreed as follows: 

Article I – Purpose 

The purpose of this Agreement is to contribute to the effective enforcement of the competition 
laws  of  each  Party  through  cooperation  and  coordination,  including  the  exchange  of 
information,  between  the  competition  authorities  of  the  Parties  and  to  avoid  or  lessen  the 
possibility  of  conflicts  between  the  Parties  in  all  matters  concerning  the  application  of  the 
competition laws of each Party. 

Article II- Definitions 

For the purpose of this Agreement, the following terms shall have the following definitions: 

(1) 

"competition authority" and "competition authorities" of the Parties mean 

(a) 

for the Union, the European Commission, as to its responsibilities pursuant to 
the competition laws of the Union; and 

(b) 

for Switzerland, the Competition Commission and its Secretariat. 

(2) 

"competent authority of a Member State" means the authority of each Member State 
of  the  Union  competent  for  the  application  of  competition  laws.  Upon  signature  of 

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this Agreement a list of such authorities will be notified by the Union to Switzerland. 
The  European  Commission  will  notify  to  the  Competition  Commission  an  updated 
list each time a change occurs. 

(3) 

"competition laws" means: 

(4) 

(5) 

(6) 

(a) 

for the Union, Articles 101, 102, and 105 of the Treaty on the functioning of 
the European Union, Council Regulation (EC) No 139/2004 on the control of 
concentrations between undertakings, Articles 53 and 54 of the Agreement on 
the European Economic Area when used in conjunction with Articles 101 and 
102  of  the  Treaty  on  the  functioning  of  the  European  Union,  and  their 
implementing regulations as well as any amendments thereto; and 

(b) 

for Switzerland, the Federal Act on Cartels and other Restraints of Competition 
of  6  October  1995  (hereinafter  referred  to  as  "Acart"),  and  its  implementing 
regulations as well as any amendments thereto; 

"anticompetitive activities" means any activities that may be subject to a prohibition, 
sanctions  or  other  relief  measures  by  competition  authorities  under  the  competition 
laws of one of the Parties or both Parties. 

"enforcement  activities"  means  any  application  of  competition  laws  by  way  of 
investigation or proceedings conducted by the competition authority of a Party; 

"Information obtained by investigative process" means any information obtained by a 
Party using its formal investigative rights or submitted to a Party pursuant to a legal 
obligation. 

(a) 

(b) 

for  the  Union,  this  means  information  obtained  through  requests  for 
information  according  to  Article  18  of  Council  Regulation  (EC)  No.  1/2003, 
oral statements according to article 19 of Council Regulation (EC) No. 1/2003 
and inspections conducted by the Commission or on behalf of the Commission 
according to Articles 20, 21 or 22 of Council Regulation (EC) No. 1/2003 or 
information  acquired  as  a  result  of  the  application  of  Council  Regulation  No 
139/2004 the control of concentrations between undertakings. 

for  Switzerland,  this  means  information  obtained  through  requests  for 
information according to Article 40 Acart, oral statements according to Article 
42  para.  1  Acart  and  inspections  conducted  by  the  Competition  authorities 
according to Article 42 para. 2 Acart or information acquired as a result of the 
application of the Ordinance on the Control of Concentrations of Undertakings. 

(7) 

"Information obtained under the leniency procedure" means: 

(a) 

(b) 

for  the  Union,  information  obtained  pursuant  to  the  Commission  notice  on 
immunity from fines and reduction of fines in cartel cases. 

for Switzerland, information obtained pursuant to Article 49a para. 2 Acart and 
Articles 8 to 14 of Ordinance on Sanctions imposed for Unlawful Restraints of 
Competition. 

(8) 

"Information obtained under the settlement procedure" means: 

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(a) 

for  the  Union,  information  obtained  pursuant  to  Article  10a  of  Commission 
Regulation (EC) No. 773/2004. 

(b) 

for Switzerland, information obtained pursuant to Article 29 Acart. 

Article III – Notifications 

(1) 

The competition authority of a Party shall notify in writing the competition authority 
of  the  other  Party  with  respect  to  enforcement  activities  that  the  notifying 
competition  authority  considers  may  affect  important  interests  of  the  other  Party. 
Notifications pursuant to this Article may be made by electronic means. 

(2) 

Enforcement activities that may affect important interests of the other Party include 
in particular: 

(a)  Enforcement  activities  concerning  anticompetitive  activities  other 

than 
concentrations against an undertaking incorporated or organised under the laws 
and regulations applicable in the territory of the other Party; 

(b)  Enforcement  activities  which 

involve  conduct  believed 

to  have  been 

encouraged, required or approved by the other Party;  

(c)  Enforcement  activities  which  involve  a  concentration  in  which  one  or  more 
parties to the transaction is an undertaking incorporated or organised under the 
laws and regulations applicable in the territory of the other Party; 

(d)  Enforcement activities which involve a concentration in which an undertaking 
controlling  one  or  more  of  the  parties  to  the  transaction  is  incorporated  or 
organised under the laws and regulations applicable in the territory of the other 
Party; 

(e)  Enforcement  activities  against  anticompetitive  activities  other 

than 
concentrations  which  also  take  place  or  took  place  in  significant  part  in  the 
territory of the other Party; and 

(f)  Enforcement  activities  which  involve  remedies  that  expressly  require  or 
prohibit  conduct  in  the  territory  of  the  other  Party  or  contain  binding 
obligations for the undertakings in that territory; 

(3) 

Notifications pursuant to paragraph 1 with respect to concentrations shall be given: 

(a) 

(b) 

in the case of the Union, when initiating proceedings pursuant to Article 6(1)c 
of Council Regulation (EC) No. 139/2004; 

in the case of Switzerland, when initiating a proceeding pursuant to Article 33 
Acart. 

(4) 

Notification pursuant to paragraph 1 with respect to matters other than concentrations 
shall be given: 

(a) 

in the case of the Union, when initiating a proceeding referred to in Article 2 of 
Commission Regulation (EC) No. 773/2004; 

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(b) 

in the case of Switzerland, when initiating a proceeding pursuant to Article 27 
Acart. 

(5) 

Notifications shall include in particular the names of the parties to the investigation, 
the  activities  under  examination  and  the  markets  they  relate  to,  the  relevant  legal 
provisions and the date of the enforcement activities. 

Article IV - Coordination of enforcement activities 

(1) 

(2) 

Where the competition authorities of both Parties are pursuing enforcement activities 
with regard to related matters, they may coordinate their enforcement activities. They 
may in particular coordinate the timing of their inspections. 

In  considering  whether  particular  enforcement  activities  may  be  coordinated,  the 
competition  authorities  of  the  Parties  shall  take  into  account  in  particular  the 
following factors: 

(a) 

(b) 

(c) 

the effect of such coordination on the ability of the competition authorities of 
both Parties to achieve the objectives of their enforcement activities; 

the  relative  abilities  of  the  competition  authorities  of  the  Parties  to  obtain 
information necessary to conduct the enforcement activities; 

the possibility of avoiding conflicting obligations and unnecessary burdens for 
the undertakings subject to the enforcement activities; 

(d) 

the opportunity to make more efficient use of their resources. 

(3) 

Subject  to  appropriate  notice  to  the  competition  authority  of  the  other  Party,  the 
competition  authority  of  either  Party  may,  at  any  time,  limit  the  coordination  of 
enforcement activities and proceed independently on a specific enforcement activity. 

Article V - Conflict avoidance (Negative Comity) 

(1) 

(2) 

The  competition  authorities  of  both  Parties  shall  give  careful  consideration  to  the 
important  interests  of  the  other  Party  throughout  all  phases  of  their  enforcement 
activities,  including  decisions  regarding  the  initiation  of  enforcement  activities,  the 
scope of enforcement activities and the nature of sanctions or other relief sought in 
each case. 

If a specific enforcement activity envisaged by a competition authority of one Party 
may affect important interests of the other Party, the former, without prejudice to its 
full discretion, shall use its best endeavours: 

(a) 

(b) 

to  provide  to  the  competition  authority  of  the  other  Party  timely  notice  of 
significant developments relating to the interests of the latter Party, 

to give the competition authority of the other Party an opportunity to provide 
comments, and 

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(c) 

to  take  into  consideration  the  comments  of  the  competition  authority  of  the 
other  Party,  while  fully  respecting  the  independence  of  the  competition 
authority of either Party to make its own decision. 

The  application  of  this  paragraph  is  without  prejudice  to  the  obligations  of  the 
competition authorities of the Parties under paragraphs 3 and 4 of Article III. 

(3) 

Where  the  competition  authority  of  either  Party  considers  that  its  enforcement 
activities may adversely affect important interests of the other Party, it shall use its 
best endeavours to seek an appropriate accommodation of the respective interests. In 
seeking  such  accommodation,  the  competition  authority  of  the  Party  concerned 
should  consider  the  following  factors,  in  addition  to  any  other  factor  that  may  be 
relevant in the circumstances: 

(a) 

(b) 

(c) 

(d) 

the relative significance of the actual or potential effects of the anticompetitive 
activities  on  the  enforcing  Party’s  important  interests  as  compared  to  the 
effects on the other Party’s important interests; 

the  relative  significance  to  the  anticompetitive  activities  of  conduct  or 
transactions occurring within the territory of one Party as compared to conduct 
or transactions occurring within the territory of the other Party; 

the extent to which enforcement activities by the other Party with respect to the 
same undertakings would be affected; 

the extent to which undertakings will be placed under conflicting requirements 
by both Parties. 

Article VI - Positive comity 

(1) 

(2) 

(3) 

If the competition authority of a Party believes that anticompetitive activities carried 
out in the territory of the other Party may adversely affect the important interests of 
the former Party, such competition authority, taking into account the importance of 
avoiding conflicts regarding jurisdiction and taking into account that the competition 
authority  of  the  other  Party  may  be  in  a  position  to  conduct  more  effective 
enforcement activities with regard to such anticompetitive activities, may request that 
the  competition  authority  of  the  other  Party  initiate  or  expand  appropriate 
enforcement activities. 

The  request  shall  be  as  specific  as  possible  about  the  nature  of  the  anticompetitive 
activities and their actual or potential effect on the important interests of the Party of 
the  requesting  competition  authority,  and  shall  include  an  offer  of  such  further 
information and other cooperation as the requesting competition authority is able to 
provide. 

The  requested  competition  authority  shall  carefully  consider  whether  to  initiate 
enforcement  activities,  or  whether  to  expand  ongoing  enforcement  activities,  with 
respect  to  the  anticompetitive  activities  identified  in  the  request.  The  requested 
competition  authority  shall  inform  the  requesting  competition  authority  of  its 
decision  as  soon  as  practically  possible.  If  enforcement  activities  are  initiated  or 
the  requesting 
expanded, 

the  requested  competition  authority  shall 

inform 

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competition  authority  of  their  outcome  and,  to  the  extent  possible,  of  significant 
interim developments. 

(4) 

Nothing  in  this  Article  limits  the  discretion  of  the  requested  Party's  competition 
authority under its competition laws and enforcement policies as to whether or not to 
undertake  enforcement  activities  with  respect  to  the  anticompetitive  activities 
identified  in  the  request,  or  precludes  the  requesting  Party's  competition  authority 
from withdrawing its request. 

Article VII - Exchange of information 

(1) 

(2) 

(3) 

(4) 

In  order  to  achieve  the  purpose  of  this  Agreement  as  set  out  in  Article  I,  the 
competition  authorities  of  the  Parties  may  share  views  and  exchange  information 
related to the application of their respective competition laws as provided for in this 
Article and in Articles VIII, IX and X. 

The  competition  authorities  of  the  Parties  may  discuss  any  information,  including 
information  obtained  by  investigative  process,  as  necessary  to  carry  out  the 
cooperation and coordination provided for under this Agreement. 

The  competition  authorities  of  the  Parties  may  transmit  information  in  their 
possession to each other  when the  undertaking which provided  the  information has 
given its express consent in writing. When such information contains personal data, 
this  personal  data  may  only  be  transmitted  when  the  competition  authorities  of  the 
Parties  are  investigating  the  same  or  related  conduct  or  transaction.  Paragraph  3  of 
Article IX otherwise applies. 

In  the  absence  of  a  consent  as  referred  to  in  paragraph  3,  a  competition  authority 
may,  upon  request,  transmit  for  the  use  as  evidence,  information  obtained  by 
investigative  process  that  is  already  in  its  possession  to  the  other  competition 
authority, subject to the following conditions: 

(a) 

(b) 

Information  obtained  by  investigative  process  may  only  be  transmitted  where 
both  competition  authorities  are  investigating  the  same  or  related  conduct  or 
transaction; 

the  request  for  such  information  shall  be  made  in  writing  and  shall  include  a 
general  description  of  the  subject  matter  and  nature  of  the  investigation  or 
proceedings  to  which  the  request  relates  and  the  specific  legal  provisions 
involved. It shall also identify the undertakings subject to the investigation or 
procedure whose identity is available at the time of the request; and 

(c) 

the competition authority receiving the request shall determine, in consultation 
with the requesting competition authority what information in its possession is 
relevant and may be transmitted. 

(5) 

Neither competition authority is required to discuss or transmit information obtained 
by investigative process to the other competition authority, in particular if it would 
be incompatible with its important interests or unduly burdensome. 

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(6) 

(7) 

(8) 

The competition authorities of the Parties shall not discuss nor transmit to each other 
information obtained under the Parties' leniency or settlement procedures, unless the 
undertaking which provided the information has given its express consent in writing. 

The  competition  authorities  of  the  Parties  shall  not  discuss,  request  or  transmit 
information  obtained  by  investigative  process  if  using  such  information  would  be 
prohibited under the procedural rights and privileges guaranteed under the respective 
laws  of  the  Parties  for  their  enforcement  activities,  including  the  right  against  self-
incrimination and the legal professional privilege. 

If  a  competition  authority  of  one  of  the  Parties  becomes  aware  that  any  document 
transmitted  under  this  article  contains  incorrect  information,  it  shall  immediately 
inform the other competition authority which shall correct it or remove it. 

Article VIII – Use of discussed or transmitted information 

(1) 

(2) 

(3) 

(4) 

(5) 

Information  that  a  Party's  competition  authority  discusses  with  or  transmits  to  the 
other Party's competition authority under this Agreement shall be used only for the 
purpose of enforcing that Party's competition laws by its competition authority. 

Information  obtained  by  investigative  process  and  discussed  with  or  transmitted  to 
the  other  Party's  competition  authority  under  this  Agreement  shall  only  be  used  by 
the receiving competition authority for the enforcement of its competition laws with 
regard to the same or related conduct or transaction. 

Information  transmitted  under  Article  7(4)  shall  only  be  used  by  the  receiving 
competition authority for the purpose defined in the request. 

No  information  discussed  or  transmitted  under  this  Agreement  shall  be  used  to 
impose sanctions on natural persons. 

A  competition  authority  may  require  that  information  transmitted  pursuant  to  this 
Agreement  shall  be  used  subject  to  the  terms  and  conditions  it  specifies.  The 
competition authority receiving the information shall not use it in a manner contrary 
to  such  terms  and  conditions  without  the  prior  consent  of  the  other  competition 
authority. 

Article IX- Protection and confidentiality of information 

(1) 

The competition authorities of the Parties shall treat the fact that a request has been 
made  or  received  as  confidential.  Information  obtained  pursuant  to  this  Agreement 
shall  be  kept  confidential  by  the  receiving  competition  authority  according  to  its 
respective  legislation.  Both  competition  authorities  shall  in  particular  oppose  any 
application  of  a  third  party  or  another  authority  for  disclosure  of  information 
received. This does not prevent disclosure of such information for the purpose of: 

(a)  obtaining  a  court  order  in  relation  to  the  public  enforcement  of  the  Party’s 

competition law(s); 

(b)  disclosure to undertakings which are subject to an investigation or a procedure 
under  the  competition  laws  of  the  Parties  and  against  whom  the  information 

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may be used, if such disclosure is required by the law of the Party receiving the 
information; and 

(c)  disclosure to courts in appeal procedures; 

(d)  disclosure if and in so far as it is indispensable for the exercise of the right of 

access to documents under the laws of a Party. 

In  such  cases,  the  competition  authority  receiving  the  information  shall  ensure  that 
the protection of business secrets remains fully guaranteed. 

(2) 

The  Parties  agree  that  if  the  competition  authority  of  a  Party  becomes  aware  that, 
despite  its  best  efforts,  information  has  accidentally  been  used  or  disclosed  in  a 
manner  contrary  to  the  provisions  of  this  Article,  it  shall  notify  the  competition 
authority of the other Party forthwith. The Parties shall promptly consult on steps to 
minimise  any  harm  resulting  from  such  use  or  disclosure  and  to  ensure  that  such 
situation does not recur. 

(3) 

The  Parties  shall  ensure  the  protection  of  personal  data  in  accordance  with  their 
respective legislations. 

Article  X-  Information  of  the  competition  authorities  of  the  Member  States  and  the 
EFTA Surveillance Authority 

(1) 

The  European  Commission,  based  on  the  Union's  competition  laws  or  other 
international provisions relating to competition: 

(a)  may  inform  the  competent  authorities  of  a  Member  State  whose  important 
interests  are  affected  of  the  notifications  sent  to  it  by  the  Swiss  competition 
authority pursuant to article 3; 

(b)  may  inform  the  competent  authorities  of  a  Member  State  of  the  existence  of 

any cooperation and coordination of enforcement activities; 

(c)  may  only  disclose  information  transmitted  by  the  competition  authority  of 
Switzerland  pursuant  to  Article  VII  of  the  Agreement,  to  the  competent 
authorities of the Member States in order to fulfil its obligation of information 
under Articles 11 and 14 of Council Regulation (EC) No 1/2003 and on Article 
19 of Council Regulation (EC) No 139/2004, 

(d)  may  only  disclose  information  transmitted  by  the  competition  authority  of 
Switzerland  pursuant  to  Article  VII  of  the  Agreement  to  the  EFTA 
Surveillance  Authority  in  order  to  fulfil  its  obligations  of  information  under 
Articles  6  and  7  of  the  Protocol  23  of  the  EEA  Agreement  concerning  the 
cooperation between the surveillance authorities. 

(2) 

Information,  other  than  publicly  available  information,  communicated  to  the 
competent authorities of the Member State and to the EFTA Surveillance Authority 
pursuant to subparagraphs (a), (b) (c) and (d) above shall not be used for any purpose 
other  than  enforcement  of  the  Union’s  competition  laws  by  the  European 
Commission, and shall not be disclosed. 

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Article XI - Consultation 

(1) 

(2) 

The Parties shall consult with each other, upon request of either Party, on any matter 
which  may  arise  in  the  implementation  of  this  Agreement.  Upon  request  of  either 
Party,  the  Parties  shall  consider  reviewing  the  operation  of  this  Agreement  and 
examine the possibility of further developing their cooperation. 

The  Parties  shall  as  soon  as  possible  inform  each  other  of  any  amendment  of  their 
competition laws, as well as of any amendment of other laws and regulations and of 
any  change  in  the  enforcement  practice  of  their  competition  authorities  that  may 
affect the operation of this Agreement. Upon request of either Party, the Parties shall 
hold consultations in order to assess the specific implications of such amendment or 
change  for  this  Agreement,  and  in  particular  to  determine  whether  this  Agreement 
should be amended pursuant to paragraph 2 of Article XIV. 

(3) 

The competition authorities of the Parties shall meet on request from one of them, at 
appropriate level. At these meetings, they may: 

(a) 

inform each other on their current enforcement efforts and priorities in relation 
to the competition laws of each Party; 

(b) 

exchange views on economic sectors of common interest; 

(c)  discuss policy issues of mutual interest; and 

(d)  discuss  other  matters  of  mutual  interest  relating  to  the  application  of  the 

competition laws of each Party. 

Article XII - Communications 

(1) 

(2) 

Unless  otherwise  agreed  between  the  Parties  or  their  competition  authorities, 
communications under this Agreement shall be made in the English language. 

Each  competition  authority  shall  designate  a  contact  point 
facilitate 
communications between the Parties on any matter relating to the implementation of 
the Agreement. 

to 

Article XIII – Existing law 

Nothing in this Agreement shall be construed to prejudice the formulation or enforcement of 
the competition laws of either Party. 

Article XIV- Entry into force, amendment and termination 

(1) 

(2) 

This  Agreement  shall  be  approved  by  the  Parties  in  accordance  with  their  own 
internal  procedures.  The  Parties  shall  notify  each  other  of  the  completion  of  the 
respective procedures. This Agreement shall enter into force on the first day of the 
second month following the date of the last notification of approval. 

The  Parties  may  agree  on  any  amendment  to  this  Agreement.  Unless  otherwise 
agreed upon, such amendment shall enter into force through the same procedures as 
set forth in paragraph 1. 

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(3) 

Either  Party  may  terminate  this  Agreement  at  any  time  by  notifying  the  other  in 
writing  through  diplomatic  channels.  In  that  event,  this  Agreement  shall  cease  to 
have effect six (6) months from the date of receiving such a notification. 

In WITNESS WHERE OF, the undersigned, being duly authorized thereto by the respective 
Parties, have signed this Agreement. 

Done in duplicate, at Brussels on ? in the Bulgarian, Czech, Danish, Dutch, English, Estonian, 
Finnish,  French,  German,  Greek,  Hungarian,  Italian,  Latvian,  Lithuanian,  Maltese,  Polish, 
Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages. 

FOR THE SWISS CONFEDERATION 

FOR THE EUROPEAN UNION 

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