Facts
The Federal Department of Economic Affairs, Education and Research (EAER) had filed an appeal with the Federal Supreme Court against a judgment of the Federal Administrative Court. The Federal Administrative Court had previously decided that the Cartel Act (CartA) was not applicable to recommended retail prices for prescription drugs such as Cialis, Levitra and Viagra, as these were reserved provisions within the meaning of Art. 3 para. 1 CartA. The Federal Supreme Court upheld the EAER's appeal. It concluded that the advertising bans for prescription drugs established by the Therapeutic Products Act (TPA) and the Medicines Advertising Ordinance (MPAO) do not constitute competition rules within the meaning of Art. 3 para. 1 CartA. Rather, they are public health regulations that are applicable in parallel to the Cartel Act. Although these advertising bans restrict competition by reducing price transparency, there is no exclusion of competition within the meaning of Art. 3 para. 1 CartA.Considerations
The Federal Supreme Court explains that Art. 3 para. 1 CartA is only applicable if there are norms that assess the same facts differently from the same perspective (norm collision). However, the TPA and the MPAO regulate the facts from different, namely public health, perspectives than the Cartel Act. Therefore, there is merely a positive norm competition in which both…