Facts
On 3 April 2013, [B. AG] filed a leniency application with the Secretariat of the Competition Commission in connection with alleged anti-competitive agreements between [B. AG], [A. AG] and three other companies regarding a joint discount policy. The Secretariat then opened a cartel investigation against all the companies mentioned.
Between 11 June and 2 July 2013, the companies were interviewed by the Secretariat, each of which was presented with a proposal for an amicable settlement. Subsequently, on 16 April 2014, such a settlement was reached between the Secretariat and [B. AG], but not with [A. AG] and the other three companies.
By decision of 8 August 2014, a Vice-President of the Competition Commission approved the amicable settlement. The other parties to the investigation challenged this decision before the Federal Administrative Court, which declared the approval decision null and void.
Following this judgment, the Competition Commission issued a new decision on 6 June 2016 approving the amicable settlement agreed between its Secretariat and [B. AG] on 16 April 2014.
Considerations
The Federal Supreme Court had to assess whether [A. AG], as one of the parties to the cartel investigation that had not concluded an amicable settlement, was entitled to challenge the approval decision.
The Federal Supreme Court denied A. AG's standing to appeal. It stated that the amicable settlement is about how an anti-competitive restraint of competition, which has been diagnosed as unlawful, can be eliminated or the lawful state restored. The subject matter of the regulation is only the future conduct…