Facts
Publigroupe SA is an international advertising group based in Lausanne. The company aims to develop and market advertising, advertisements, and commercials of all kinds. Publigroupe SA is both a lessee and a broker of advertising space in print media. The Competition Commission (WEKO) has found that Publigroupe SA holds a dominant market position in the market for the brokerage and sale of advertising space in print media and has abused this position by discriminating against independent brokers.
The WEKO has charged Publigroupe SA with an amount of CHF 2.5 million. Publigroupe SA and the Association of Swiss Advertising Companies (VSW) have appealed the WEKO's decision to the Federal Administrative Court, which has dismissed the appeal. Publigroupe SA and the VSW have subsequently appealed to the Federal Court.
Considerations
The Federal Court has dismissed the appeal and confirmed the WEKO's decision. The court has found that the sanctions under Art. 49a of the CartA have a criminal character and must therefore meet the requirements of Art. 6 of the ECHR and Art. 30 of the Cst.
The court has further found that the WEKO, as a competition authority, does not meet the requirements of Art. 6 ECHR and Art. 30 Cst, as it is not independent and impartial. However, the court has also found that the requirements of Art. 6 ECHR can only be met in administrative court proceedings, when the administration can impose sanctions with a criminal character in administrative proceedings.
The court has also examined the question of whether the offense of Art. 7 para. 1 CartA is sufficiently determined to serve as a legal basis for sanctions. The court has found that the offense of Art. 7 para. 1 CartA must be read together with para. 2 of the same provision and that…