Facts

The pharmaceutical companies Eli Lilly (Suisse) SA, Bayer (Schweiz) AG and Pfizer AG, among others, distribute the medications against erectile dysfunction manufactured by their parent companies, namely Cialis (Eli Lilly), Levitra (Bayer) and Viagra (Pfizer). These medicinal products are prescription-only, but not listed on the special list of the health insurance system and are therefore not covered by health insurance (so-called off-list medications).

On May 10, 2005, the Secretariat of the Competition Commission (Secretariat) opened a preliminary investigation, as Eli Lilly, Bayer and Pfizer issued non-binding price recommendations for Cialis, Levitra and Viagra to wholesalers and points of sale or had them forwarded to these via a database operator. On June 26, 2006, the Secretariat then opened an investigation against the aforementioned companies. On November 2, 2009, the Competition Commission (WEKO) imposed a sanction on the grounds that the publication and observance of recommended retail prices for Cialis, Levitra and Viagra constituted an unlawful restraint of competition within the meaning of Art. 5 para. 1 in conjunction with Art. 5 para. 4 of the Cartel Act.

Pfizer challenged the sanction decision on January 18, 2010 at the Federal Administrative Court. On December 3, 2013, the court upheld the appeal and annulled the decision. The Federal Supreme Court overturned the decision of the Federal Administrative Court on January 28, 2015 and remanded the case for a new decision to the lower court. The Federal Administrative Court upheld the appeal again on December 19, 2017 and annulled the decision.

The Federal Department of Economic Affairs, Education and Research (WBF) filed an appeal in public law matters with the Federal Supreme Court on February 12, 2018 and requested, among other things, the confirmation of WEKO's decision of November 2, 2009.

Considerations

The Federal Supreme Court first examines whether the conduct of the respondent, together with the pharmacies and self-dispensing physicians, constitutes an unlawful and sanctionable restraint of competition within the meaning of Art. 4 para. 1 of the Cartel Act. For this,…