In a note dated 23 September 2014, the Swiss Federal Department for Economic Affairs clarified how the European Commission (EC) may send notices to Swiss companies, something companies often struggle with in light of the Swiss criminal blocking statutes on the provision of data/information to foreign authorities, requiring a waiver from the Swiss government. It confirmed that acts of state cannot be sent by the EC to Swiss companies directly but only through the Swiss Competition Commission (ComCo). Acts of state are considered to be acts by which penalties can be imposed, a certain conduct can be prohibited or demanded, subject to penalties in case of non-compliance. Non-compulsory requests for information, i.e. not subject to penalties, are not considered acts of state and can be notified directly without a waiver being required. By Philippe Reich* and Roger Thomi*
* Philippe Reich is a partner, Roger Thomi an associate in Baker & McKenzie’s Zürich office.