By issuing the Elmex decision the Federal Administrative Court (Bundesverwaltungsgericht) pointed the direction in the debate on the introduction of partial per-se prohibitions, which has been a topic within the current revision of the Swiss Cartel Act since 2011.
The radiance of the Elmex decision is inter alia based upon the fact, that the intended goal of the revision of the Cartel Act of turning cartel procedures more efficient is achieved without burdensome amendments of the law. In addition, the solution provided by the Federal Administrative Court avoids legal uncertainty resulting from law revisions. Finally - and that's of crucial interest for companies - the decision makes clear, that economically significant agreements pursuant to Art. 5 para 3 and 4 Cartel Act are subject to sanction for unlawful restraints of competition (Art. 49a Cartel Act).
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