EU/Switzerland Competition Law Cooperation Agreement David Mamane, LL.M. European Parliament ECON Briefing Session,

EU/Switzerland cooperation agreement competition policy enforcement6 November 2013 Page 2/7 General remarks >The following presentation is made from a practitioner's point of view and will focus on the specific novelty of the 2 nd generation agreements: Exchange of confidential information >Generally there can be a legitimate interest to coordinate cross-border investigations in order to prevent diverging results (insofar as a diverging result is not the consequence of different legal conditions) >Already done today on the basis of individual waivers in merger control and leniency procedures >EU/Switzerland: Similarity (not identity) of the competition law rules  equivalence of the outcome in many cases, but differences remain

EU/Switzerland cooperation agreement competition policy enforcement6 November 2013 Page 3/7 Potential issues (1/3) >Judicial protection in case of information exchange without consent of the affected parties >Possibility to exchange information upon a formal request >The Cooperation Agreement does not include any rules on the possibility to appeal the information exchange >Is the possibility to appeal against the collection of the information/evidence and against the final decision sufficient? >The courts will have to decide on the appeals possibility based on the applicable (national) procedural law  diverging results possible? >Will the affected parties be informed regarding the request for information by the other authority?  Unclear based on article IX(1) of the Cooperation Agreement, but affected parties should be informed

EU/Switzerland cooperation agreement competition policy enforcement6 November 2013 Page 4/7 Potential issues (2/3) >Protect effectiveness of leniency procedures: >Information obtained within leniency procedures may not be disclosed (except with written consent of the party) >Which “information” is protected: Only the leniency application or also the evidence submitted together with the leniency application? >Cooperation obligation of leniency applicant: Leniency applicant should not be obliged to agree to an information exchange based on his obligation to cooperate >Ensure attractiveness of settlement procedures: >Information obtained within settlement procedures may not be disclosed (except with written consent of the party) >How to deal with information that has been exchanged prior to the settlement  claw-back mechanism? >Relevant time for cutting-off the information exchange: start of the settlement negotiations or final confirmation of the settlement?

EU/Switzerland cooperation agreement competition policy enforcement6 November 2013 Page 5/7 Potential issues (3/3) >Exchange of protected data / data protection rules: >Protection of personal data must be ensured >Equivalence of data protection rules, e.g. regarding legal entities? Possibly Swiss protection goes further in some cases. >Necessity of additional safeguards? >Specific confidentiality laws : Admissible to exchange such information? >Exchange of Diplomatic Notes on the notification of acts of public authority in the area of competition policy >Only for acts by the European Commission >Issues of blocking statutes remain

EU/Switzerland cooperation agreement competition policy enforcement6 November 2013 Page 6/7 Considerations for future agreements >To be assessed whether there is sufficient similarity/equivalence between the involved competition law regimes >Rules regarding judicial protection could be determined in the context of the agreement  ensure coherent and foreseeable application in both jurisdictions >Procedural steps in the context of settlement/leniency procedures could be clarified and possibly extended in order to maintain the attractiveness of these procedures >Assess the bilateral application of the possibility to notify acts of public authority

EU/Switzerland cooperation agreement competition policy enforcement6 November 2013 Page 7/7 David Mamane Schellenberg Wittmer Ltd / Attorneys at Law Löwenstrasse 19 P.O. Box Zurich / Switzerland T F Thank you for your attention.