Federal Supreme Court, Decision 2C_149/2018 of 4 February 2021

28. April 2021 – In this decision (“Sanction order: Hors list medicines (recommended prices)”, the Federal Supreme Court substantiated the concept of concerted practices. The subject of the proceeding was non-binding recommended prices for medicines that were transmitted electronically by the manufacturers to wholesalers and sales outlets. After the Competition Commission (Comco) had ruled that the publication of and compliance with these recommended retail prices constituted an unlawful agreement affecting competition within the meaning of art. 5 para. 1 in conjunction with art. 5 para. 4 KG, the lower court revoked this order.

After a comprehensive examination, the Federal Supreme Court ruled that even a mere one-sided exchange of information could be sufficient to fulfil the minimum communication required for a coordination. Moreover, a compliance rate of 50% of the affected sales outlets was already sufficient to affirm the success of the coordination or the corresponding market conduct. Furthermore, the fact that the price recommendation was described as "non-binding" or "intended for the public" was not decisive for the assessment of the causal connection. In contrast to the lower court, the Federal Supreme Court therefore concluded that the vertical price recommendations constituted a concerted practice within the meaning of art. 4 para. 1 KG. The appeal was upheld and the case was referred back to the lower court for the assessment of sanctions.

For the full decision, see here.