Facts
The pharmaceutical companies Eli Lilly, Bayer, and Pfizer sell prescription drugs for erectile dysfunction that are not listed on the specialty list of health insurance. In 2005, the Secretariat of the Competition Commission (COMCO) opened a preliminary investigation because the manufacturers issued non-binding price recommendations to wholesalers and retailers. In 2006, an investigation was opened, which led to a COMCO sanction in 2009.
COMCO found that the publication and observance of the price recommendations constituted an unlawful cartel agreement. It prohibited the manufacturers from further publishing the price recommendations and prohibited the wholesalers Galexis, Unione Farmaceutica Distribuzione, Voigt, Amedis-UE, and the company e-mediat from performing any further "accomplice acts".
The Federal Administrative Court overturned the measures against the wholesalers and the company e-mediat. Thereupon, the Federal Department of Economic Affairs, Education and Research filed an appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the Cartel Act does not know the term "accomplice", but there are two situations in which accompliceship can be spoken of:
1. If an act was committed in violation of a prior decision, the penal provisions of…