Facts

Parties and procedural history: The complainants Vifor Pharma Participations AG (formerly Vifor Pharma AG) and HCI Solutions AG appealed against a ruling by the Competition Commission (WEKO) dated 19 December 2016 and a judgment of the Federal Administrative Court dated 19 January 2022. The WEKO had accused them of abusing a dominant market position through contractual clauses. The Federal Supreme Court rendered its decision on 23 January 2025.

Facts of the case:

HCI Solutions AG (formerly Documed AG and e-mediat AG) held a dominant position in the relevant market (September 2012 to May 2016) for refined, machine-readable data on medicinal information. It offered the Compendium (professional and patient information) as well as seven INDEX databases (e.g. medINDEX for physicians). The data were sourced from medicinal products authorised by Swissmedic, structured, coded and commercialised. The INDEX databases were based on XML schemas enabling interaction checks between medicinal products.

HCI Solutions AG entered into licence agreements with software houses for integrating the data into their software. Clause B was included in 83 of 176 contracts and provided:

  • “Without prior written consent from e-mediat, the software house is not entitled to implement third-party data into the XML structures of e-mediat or to input data into its software that does not originate from e-mediat and is structured in the same or substantially the same way as e-mediat data.”

From April 2012 onwards, HCI Solutions AG concluded publication agreements with marketing authorisation holders (pharmaceutical companies) governing the inclusion of professional and patient information in the Compendium and the INDEX databases. The basic modules D1 (Compendium) and E1 (INDEX databases) could only be obtained together with the so-called basic services (editorial and technical quality assurance). Free upload of the data to the Swissmedic AIPS platform was also part of the agreement.

WEKO ruling and lower court: The WEKO found that HCI Solutions AG had abused its dominant position by:

  • restricting sales pursuant to Art. 7(2)(e) CartA (restriction of production, sales or technical development) through Clause B,
  • engaging in unlawful tying pursuant to Art. 7(2)(f) CartA by tying the basic modules D1 and E1 to the basic services and the free upload to AIPS.

The WEKO imposed a joint fine of CHF 4,546,123.- on Galenica AG and HCI Solutions AG. The Federal Administrative Court confirmed the abuse but reduced the fine to CHF 3,778,794.- and directed the measures solely at HCI Solutions AG.

Considerations

1. Entity subject to sanction following restructuring Complainant 1 (Vifor Pharma AG) was the parent company of HCI Solutions AG at the time of the anti-competitive conduct (until April 2017). Following the restructuring of the Galenica Group (from April 2017), Vifor Pharma AG lost control over HCI Solutions AG. Nevertheless, Vifor Pharma AG remained an active company until its merger with Vifor Pharma Participations AG in May 2023 and thus remained a subject of sanction pursuant to Art. 49a CartA. Vifor Pharma Participations AG, as the legal successor of Vifor Pharma AG, is also a subject of sanction as it preserves economic continuity. Sanctioning a holding company is permissible since it continues to engage in economic activities.

2. Dominant position of HCI Solutions AG The Federal Supreme Court confirmed HCI Solutions AG’s dominant position on two relevant markets:

  • Market for refined, machine-readable data on medicinal information: HCI Solutions AG held market shares of significantly over 50 %. Potential competition could not discipline this market position since establishing a comparable database would require more than two to three years due to the specific know-how and high investments involved.
  • Market for the inclusion and maintenance of medicinal information in electronic data records: Here too, HCI Solutions AG’s market shares were well over 50 %. While marketing authorisation holders had the economic capacity to establish a competing database, this was not feasible in the foreseeable future due to the required expertise and market entry barriers.

3. Abuse through restriction of sales (Art. 7(2)(e) CartA): The Federal Supreme Court clarified the requirements for proving anti-competitive effects under an “effects-based approach”. A merely hypothetical or abstract risk is insufficient. Instead, the conduct in question must actually be capable of impairing competition. In this regard, the Federal Supreme Court partially overturned the lower court’s assessment:

  • Clause A (exclusive supply obligation): Clause A, which was included in only one of 176 contracts with software houses, did not lead to an effective market foreclosure. Competitors still had access to 175 software houses,…