“Swisscom”
摘要
The fact that a public invitation to tender took place and the contract was awarded does not exclude the assumption of a dominant market position of one bidder under the Cartel Act from the outset. The primary question is whether a bidder can abuse a possible dominant position in view of the strong position of the awarding authority in a public invitation to tender. An undertaking can admit to conduct that hinders or disadvantages the competition or trading partners and at the same time claim to have merely applied legitimate business principles. The causal link between a dominant market position and unfair prices is not sufficient to fulfil the criteria of Art. 7(2)(c) Cartel Act, Rather, there must be an “imposition” as a qualifying element or behaviour, i.e. the trading partner has nothing to oppose or cannot evade the economic pressure, which is generated by a certain behaviour and is based on market dominance. A complete subjugation of the trading partners, however, is not required. As such, a price that is the result of negotiations cannot, in principle, be based on “imposition”, as negotiations are an expression of the fact that something can be done to counter the economic pressure exerted by the market power. Article 7(2)(c) Cartel Act does not protect trading partners who have allowed themselves to be taken advantage of through their own fault. A price can only be “unfair” in the context of the Cartel Act if it is based on a restraint of competition. A high margin cannot be equated an unfair price, as the Cartel Act does not serve to regulate prices, and instead all the circumstances of the specific case must always be taken into account. It is only necessary to intervene in the event of a blatant disproportion between own costs and sales price, as, in principle, only a very high profit margin or profitability should be an indication that the price is unfair. The margin squeeze has an independent element of injustice and must therefore be qualified as an independent form of abusive behaviour compared to the offences under Art. 7(2) Cartel Act. In this respect, a margin squeeze does not require the price on the upstream market and the retail market to be unfair within the meaning of said provision. Rather, the margin squeeze is characterised by the exercise of two-dimensional price pressure (on the upstream and retail market), a predatory strategy by means of a two-stage exclusionary abuse. Whether the competitor’s profit margin is insufficient, when calculating the existence of a margin squeeze, is not to be determined on the basis of the competitor’s costs, but on the basis of a cost-price comparison at the market-dominant undertaking itself. I.e. a so-called profitability test (“as-efficient-competitor test”, “equally efficient competitor test”) must be carried out. The costs of the competitor (so-called “arm’s length test”) may only be taken into account in exceptional cases, namely if the costs of the dominant undertaking cannot be determined. A margin squeeze can therefore be ruled out in the absence of abusive behaviour, which is required in particular on the basis of Art. 7(1) Cartel Act.