Facts
Credit Suisse AG, Raiffeisen Switzerland Cooperative, UBS AG, and Zürcher Kantonalbank planned to introduce a multilaterally negotiated Domestic Interchange Fee (DMIF) for domestic Maestro card transactions. They reported the agreement to the Secretariat of the Competition Commission in July 2004. The Secretariat then initiated a preliminary investigation, whereupon the companies initially refrained from implementing the agreement.
In December 2005, the Competition Commission approved a consensual arrangement for the related market of VISA and MasterCard credit cards. In April 2006, the companies requested the Secretariat to continue the preliminary investigation into the DMIF for Maestro transactions and to conclude an amicable settlement as soon as possible. In July 2006, the Secretariat decided to open an investigation pursuant to Article 27 of the Cartel Act if the DMIF was introduced.
In December 2006, the companies requested the Competition Commission to determine that the reported DMIF for Maestro transactions was permissible. The Competition Commission did not enter into the request, which was confirmed by the Federal Administrative Court and ultimately the Federal Supreme Court.
Considerations
The Federal Supreme Court held that the notification and objection procedure under Article 49a paragraph 3 letter a of the Cartel Act is a special cartel law procedure that does not lead to an independent decision on the permissibility of a notified restraint of competition. Rather, it serves to enable the parties concerned to obtain an initial assessment of their planned conduct.
A declaratory judgment procedure on the substantive permissibility of a conduct outside the investigation procedure under…