Mario Strebel

CORE Attorneys

Zurich www.core-attorneys.com

mario.strebel@core-attorneys.com Tel: +41 43 555 70 07

Biography

Mario is a founding partner of CORE Attorneys. He has extensive experience in his area of expertise that focuses on all aspects of competition law, regulatory matters and distribution law. Other areas of expertise include e-commerce and digital economy matters, general contract law including commercial disputes, unfair competition law, compliance, internal investigations and public procurement. Mario represents national and international clients from start-up to multinational companies in all these areas of law.

CORE Attorneys is a Swiss boutique law firm. What does the firm stand for and what does set it apart from other firms?

CORE Attorneys is a Swiss boutique law firm with an exclusive focus on competition law, regulatory matters and distribution law. We offer national and international clients, from a broad range of industries, efficient and effective advice and representation at all times, and stand for uncompromised and solution-oriented support. Our practice is based on many years of experience in all focus areas and in various roles such as law clerks, authority members, in-house and external counsel. The flexible and entrepreneurial set-up allows us to dedicate ourselves even more rigorously and with even greater focus to the cause of our clients. With our strong network in Switzerland and abroad with leading lawyers and economists, we are also able to complement our team with specialised expertise in both our own fields of expertise and in related areas when needed. Thanks to our rigorous and field-tested project management, we work with these specialists seamlessly like one firm.

What challenges do you face when advising clients on Swiss dominance issues?

First, there are not that many dominance proceedings in Switzerland. Hence, the lack of comprehensive Swiss case law constitutes a certain challenge, even though the EU case law serves to some extent as a substitute. Dominance cases are, in any event, complex and usually involve vast amounts of information requiring in-depth analysis. However, from what I can see, the Swiss authorities and courts, respectively, increasingly apply a rather formalistic approach also in dominance matters, e.g. regarding price differentiation or to the disclosure of interface information to mention two rather recent cases. Under this approach that you might call a per se approach, certain conduct may be qualified illegal and subject to direct fines without examination of any actual effects on the relevant market(s). In my view, it is therefore even more important to tell a credible, empirically founded story from the perspective of the client.

What are the greatest challenges when it comes to the merger control process?

Many companies perceive the merger control process as a rather onerous duty. As a result, they want to have to do with it as little as possible and hope that they can leave the process entirely to their lawyers. Even though one can understand this attitude to some extent, it may not lead to the best results. The transaction parties may even miss some opportunities to gain a competitive edge. Based on my experience in dealing with merger control filings, it is not the technical skills of the lawyers (which are, of course, essential), but other factors that ultimately decide on the success of a merger control procedure in substance and, often equally important, in terms of timing. First and foremost, early planning and rigorous project governance is key. Companies and their management teams considering a transaction should be aware of the regulatory framework in terms of merger control right from the start, in particular regarding notification and standstill obligations. Also, solid, and effectively practised project governance and documentation regarding information exchange should be put in place from the outset. Lastly and obvious, but just as often forgotten is that the company and its advisers should work as one and that a good working relationship with the competition authorities is crucial too. When all this comes together nicely, the groundwork for an optimal merger control process should be well in place.

What issues do you think will be a priority for the Swiss Competition Commission (COMCO) in the next five years?

I expect cartel cases (horizontal agreements) and vertical agreements to remain COMCO’s main priority. In particular, parallel trade bans that foreclose the Swiss market from the rest of Europe, for instance through online sales restrictions, and agreements that aim at maintaining a high price level in Switzerland, i.e., through resale price maintenance, will most likely continue to be at the centre of attention. Also, highly consolidated How did the introduction of the concept of relative market power into Swiss competition law impact practice and clients?

In March 2021, the Swiss Parliament adopted the counterproposal to the so-called Fair-Price-Initiative. In addition to the prohibition of private geo-blocking, this counterproposal introduced the concept of relative market power in the Swiss Cartel Act. Thus, since 1 January 2022, behavioural obligations for companies whose unilateral behaviour have so far not been subject to any competition law scrutiny apply. The Swiss Competition Commission (COMCO) announced that it intends to issue landmark cases relatively quickly and, subsequently, wants to refer complainants to the civil courts. Hence, in the view of the COMCO, the new provisions shall mainly be enforced by civil courts. A wave of complaints to the COMCO has so far failed to materialise and only one investigation into a possible abuse of relative market power has been opened. However, the case relates to the refusal of sales at on-site conditions abroad and concerns thus the actual core concern of the revision. As a compliance measure and in order to take or avoid the opportunities and risks related to the introduction of the concept of relative market power, companies should conduct a mapping of buyers and suppliers for individual products and services. The decisive factor in this regard is not the general market condition, but the bilateral business relationship. Such mapping forms the basis for the definition of concrete objectives and measures. For example, in view of contract negotiations, an argumentation can be prepared, substantiated by documentation as evidence for or against one’s own dependency or relative market power, respectively. Depending on the initial situation, it may also be required to amend distribution and supply contracts or the instructions for dealing with certain customer enquiries. CORE Attorneys assist clients with regard to all sorts of queries that come up in relation to this concept newly introduced into Swiss law.

WWL says: The “outstanding” Mario Strebel is lauded for his “ability to maintain close contact with competition authorities, clients and peers”.