The Swiss economy supports strong antitrust laws. Restrictions on competition should be prevented and fair competition ensured. In practice, however, the competition authorities had increasingly moved away from this principle. Instead of examining the actual effects on the market, they primarily assessed the form of an agreement. Certain agreements were thus automatically deemed inadmissible, even if they were proven to have no harmful effects.
This led to considerable legal uncertainty, particularly for SMEs, planning offices, and companies in the construction industry. Purchasing groups, joint research projects, and insurance pools came under scrutiny, even though they often enabled efficiency gains and better market performance. With the revision that has now been passed, Parliament is responding to this problem and calling for a return to the original intention of the legislature.
New assessment logic in Art. 5 of the Cartel Act
The core of the revision is the clarification in Art. 5 para. 1 of the Cartel Act. In future, it will no longer be sufficient to simply classify an agreement as a “hard agreement.” An overall assessment of its significance, taking into account qualitative and quantitative elements, will always be required. These include market structure, market shares, and specific framework conditions in each individual case.
The nature of the agreement remains important because it provides indications of typical harmful potential. However, it is now clearly stated that it must be examined whether this potential actually materializes in the real market environment. In practice, this means that competition authorities can no longer sanction cooperations solely on the basis of their form, but must justify why and where they actually impair competition. The substantive amendments are expected to come into force on January 1, 2027.
More scope for cooperation
The revision strikes a delicate balance. Cooperation that is competitively unobjectionable or even beneficial is taken out of the firing line without weakening the enforcement power of the Competition Commission. This provides greater clarity for planning offices, engineering firms, and other players in the construction industry. This is particularly the case where cooperation is permitted, such as in joint procurement, standardization projects, or shared resources.
At the same time, the fundamental mandate of antitrust law remains untouched. Hardcore cartels, price fixing, and bid rigging will continue to be strictly prosecuted. The revision does not shift the focus away from protecting competition, but back to its core. Effect rather than form, abusive behavior rather than blanket suspicion.
Institutional reform of the competition authorities
The process is not complete with the substantive revision. In 2026 and 2027, institutional reform will come to the fore. This involves the question of how cartel proceedings are conducted and how they are structured in accordance with the rule of law.
Several elements are central to this. First, the institutional separation between investigation and decision-making is to be sharpened. The Competition Commission will be expanded into a more court-like body with its own specialist resources, while the Secretariat will act as an independent prosecuting authority.
Second, a specialized appeals body is planned to bundle antitrust cases, secure expertise, and speed up proceedings. Third, an independent hearing officer will be appointed to monitor compliance with procedural rights and serve as a neutral point of contact for the parties without interfering in the substantive decisions.
Fourthly, greater transparency is to be created by publishing dissenting opinions and making divergent views visible, which will make legal developments more comprehensible. Under the ECHR, antitrust proceedings are considered criminal proceedings, deeply interfere with the rights of the companies concerned, and are therefore subject to high constitutional requirements. It is precisely in this area of tension that Bauenschweiz continues to see a considerable need for reform.
Bauenschweiz pushes for greater rule of law
Bauenschweiz welcomes the fact that the Federal Council recognizes the need for reform in enforcement, but rejects the current proposal for institutional reform. From the umbrella organization’s point of view, it does not sufficiently address the central shortcomings. In particular, the independence of the decision-making body, the clear separation of investigation and judgment, and the protection of procedural guarantees are not yet sufficiently ensured.
An antitrust framework that deeply interferes with entrepreneurial freedoms requires robust institutions, transparent procedures, and trust in fairness. Only in this way can competition violations be consistently sanctioned without unnecessarily hindering investment willingness and meaningful cooperation.
The Federal Council’s message on institutional reform is expected in the summer of 2026, with parliamentary deliberations likely to begin in the third or fourth quarter. Bauenschweiz intends to get involved again, together with an economic alliance. The aim is to establish antitrust law that protects competition, assesses cooperation on a case-by-case basis, and consistently meets the requirements of the rule of law.
