The Cooperation Agreement between the European Union and Switzerland in competition matters, which entered into force on 1 December 2014, is the first “second generation” agreement concluded by the European Union with a third country and provides for exchange of information obtained in investigations.

The Cooperation Agreement between the European Union and Switzerland in competition matters entered into force on 1 December 2014.  This is the fifth cooperation agreement concluded by the European Union in competition matters (as opposed to a simple memorandum of understanding, of which there are four).  The other agreements were concluded with the United States in 1991, Canada in 1999, Japan in 2003 and South Korea in 2009.  All five agreements have provisions on notifications, coordination of enforcement activities, conflict avoidance (negative comity), positive comity and exchange of information.

The innovation in the Switzerland agreement is its provision for exchange of information obtained in the respective investigations of the competition authorities of the contracting parties, even in the absence of consent by the party concerned.  Exchange in these novel circumstances is subject to the following strict conditions:

• The information may only be transmitted where both competition authorities are investigating the same or related conduct or transactions
  The written request for the information must include a general description of the subject matter and nature of the related investigation or procedures, indicate the specific legal provisions involved, and identify the undertakings subject to the investigation or procedure whose identity is available at the time of the request.

• The requested competition authority must determine, in consultation with the requesting authority, which information in its possession is relevant and may be transmitted.

• No information may be transmitted if its use would be prohibited under the procedural rights and privileges guaranteed by the respective parties’ laws applicable to enforcement activities, including the right against self-incrimination and the rules on legal professional privilege.

• The information transmitted may only be used by the receiving competition authority for the purpose defined in the request.

• No information transmitted may be used to impose sanctions on natural persons.

As in the other cooperation agreements, the requested competition authority retains the right to impose conditions on the use of any information transmitted.  It may even refuse to communicate information if doing so would be incompatible with its interests or unduly burdensome.

Where the information requested was obtained under a competition authority’s leniency or settlement programme, the above limitations apply, but the express consent of the undertaking which provided the information is also required.