#1. Legislative History
N. 1 Art. 96 FC continues the long tradition of Swiss competition legislation. The predecessor provision Art. 31bis para. 3 lit. d aFC empowered the Confederation since 1947 to enact regulations against economically or socially harmful effects of cartels. With the total revision of the Federal Constitution in 1999, this competence was transferred to Art. 96 FC and systematically expanded (BBl 1997 I 387).
N. 2 The Message on the new Federal Constitution emphasizes the character as a legislative mandate: The Confederation is not only empowered but obligated to take action against harmful restraints of competition (BBl 1997 I 387). This obligatory dimension distinguishes Art. 96 FC from mere competence norms.
N. 3 The historical development shows continuous expansion: While Art. 31bis aFC still focused on cartels, Art. 96 FC covers all «other restraints of competition». The explicit mention of price supervision (para. 2 lit. a) and unfair competition (para. 2 lit. b) was already established in Art. 31septies aFC.
#2. Systematic Classification
N. 4 Art. 96 FC is systematically placed in Title 3 (Confederation, Cantons and Communes), Chapter 3 (Financial and Economic System) of the Federal Constitution. The provision concretizes economic freedom (→ Art. 27 FC) and the principles of the economic system (→ Art. 94 FC).
N. 5 In relation to Art. 94 FC, Art. 96 FC represents the specific competition law manifestation. While Art. 94 establishes the fundamental commitment to a competition-based economic system, Art. 96 concretizes the instruments for enforcing this system.
N. 6 The cross-connections to other economic constitutional norms are manifold: → Art. 95 FC (private economic activity) protects participation in competition, → Art. 97 FC (consumer protection) complements protection against competition distortions, → Art. 100 FC (economic policy) can legitimize competition-restricting measures.
#3. Elements of the Offence / Normative Content
N. 7 Competition as protected interest: Art. 96 FC protects competition as an institution and process. According to Uhlmann, the concept of competition encompasses the performance-based contest between undertakings for market share. The Federal Administrative Court specifies that market abuse can only be said to exist when effective competition is lacking.
N. 8 Economically or socially harmful effects: The element of harmfulness is central. Not every restraint of competition is covered, but only those with demonstrably negative consequences. The Federal Court interprets this not as an absolute prohibition of per se rules: «The mention of harmful effects in the constitutional text does not exclude partial prohibitions of demonstrably particularly harmful agreements or conduct» (BGE 135 II 60).
N. 9 Cartels and other restraints of competition: The term encompasses horizontal and vertical agreements as well as unilateral conduct by companies with market power. The formulation «other restraints of competition» extends the scope of application beyond classic cartels to all forms of impediments to competition.
N. 10 Market power (para. 2 lit. a): A prerequisite for price abuse is a dominant or at least strong market position. The Federal Administrative Court emphasizes that prices can be abusive only where the relevant market lacks effective competition. Market power analysis follows economic criteria (market shares, barriers to market entry, potential competition).
N. 11 Unfair competition (para. 2 lit. b): Covered are all conduct that violates good faith and impairs the functionality of competition. The norm protects both the institution of competition and individual market participants.
#4. Legal Consequences
N. 12 Art. 96 FC establishes a legislative mandate with obligatory character. The Confederation must take action; complete renunciation of competition legislation would be unconstitutional. However, the design lies within the discretion of the legislator (BBl 1997 I 387).
N. 13 The constitutional norm authorizes preventive and repressive measures. This includes prohibition norms (CartA), control mechanisms (merger control), sanctions (Art. 49a CartA) and flanking instruments such as price supervision (Richli, Leitung der Wirtschaftspolitik, 156).
N. 14 Art. 96 FC does not establish immediate subjective rights. Private parties cannot directly invoke the constitutional norm, but only the concretizing statutes (CartA, UCA, PSA). The norm primarily operates as an objective regulatory provision (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N. 1289).
#5. Disputed Issues
N. 15 Permissibility of per se prohibitions: It is controversially discussed whether Art. 96 FC permits per se prohibitions without proof of harmful effects in individual cases. The Federal Court affirms «selective per se prohibitions» for particularly harmful conduct (BGE 135 II 60). Jacobs criticizes this case law as unconstitutional (SJZ 2014, 345). Hoffet warns against fundamental prohibitions without case-by-case examination (Anwaltsrevue 2011, 228). Hilty/Früh conversely consider prohibitions fundamentally qualified as harmful to be constitutionally compliant (in: FS Baudenbacher, 234). The Federal Council proposes a middle way: fundamental prohibition of grave restrictions with possibility of justification on economic grounds.
N. 16 Direction of protection: Institution vs. individual protection: It is disputed whether Art. 96 FC primarily protects competition as an institution or also individual competitors. The systematic position close to Art. 94 FC speaks for institutional protection (Zäch, Kartellrecht, 45). However, the prevailing doctrine sees a dual direction of protection: Art. 96 FC protects «competition as an institution as well as the personality of individual competition participants» (David/Jacobs, Wettbewerbsrecht, 67).
N. 17 Relationship between cartel law/unfair competition law: The delineation between para. 1 (cartel law) and para. 2 lit. b (unfair competition law) is not clear-cut. Borer advocates for a clear separation according to the object of protection: cartel law protects competition, unfair competition law protects fairness (Wettbewerbsrecht I, N. 15). Baudenbacher conversely sees fluid transitions, since unfair conduct often also has competition-restricting effects (Lauterkeitsrecht, 45).
#6. Practice Notes
N. 18 When examining restraints of competition, the three-stage analysis must always be conducted: (1) Is there a restraint of competition? (2) Is this economically or socially harmful? (3) Are justification grounds given? The mere existence of a restriction is not sufficient for inadmissibility.
N. 19 Sector-specific exceptions are to be interpreted restrictively. Art. 3 para. 1 CartA only excludes competition insofar as state market or price regulations leave no room. The exception only applies to the directly regulated area (BGE 141 II 66).
N. 20 For international matters, the extraterritorial application of Swiss competition law must be examined according to the effects principle. Conduct abroad is subject to Swiss law if it affects the Swiss market (Art. 2 para. 2 CartA).
N. 21 The procedural guarantees under Art. 6 and 7 ECHR apply without restriction as soon as sanctions threaten. The Federal Court qualifies cartel law fines as «criminal» within the meaning of the ECHR (BGE 139 I 72). Companies must not incriminate themselves (nemo tenetur principle).
N. 22 In sanction assessment under Art. 49a CartA, the severity and duration of the violation, the profit achieved and willingness to cooperate must be considered. The upper limit of 10% of Swiss turnover of the last three years applies absolutely.
N. 23 Compliance programs can mitigate sanctions but do not exclude them. Preventive measures must be credibly implemented and enforced. The mere existence of guidelines is not sufficient (COMCO practice).