Facts
Bayerische Motoren Werke AG (BMW AG), headquartered in Munich, is the parent company of the BMW Group. The distribution of BMW products in Switzerland as well as in the European Economic Area (EEA) is carried out through a selective distribution system. The dealer contracts since 1 October 2003 contain an export clause prohibiting dealers from supplying new BMW vehicles and original BMW parts to customers outside the EEA. In 2010, the Secretariat of the Competition Commission received a complaint from a prospective BMW buyer that a contract dealer had refused to sell a new vehicle to Switzerland. Consequently, the Competition Commission opened an investigation against BMW AG for possible unlawful competitive agreements. On 7 May 2012, the Competition Commission issued a sanction decision against BMW AG in the amount of CHF 156,868,150.-. BMW AG filed a complaint against this decision. The Federal Administrative Court dismissed the complaint on 13 November 2015. BMW AG then filed a complaint with the Federal Supreme Court.Considerations
The Federal Supreme Court dismissed BMW AG's complaint: 4. The export clause in BMW AG's dealer contracts constitutes an unlawful competitive agreement under Art. 5 para. 4 CartA, which significantly impairs competition. Such agreements under Art. 5 paras. 3 and 4 CartA generally meet the criterion of significance under Art. 5 para. 1 CartA, without the need to consider the actual effects. The appellant also could not justify the agreement on grounds of economic…