Relative Marktmacht – gerichtliche Sicht
The amendment 2021 of the Swiss Federal Act on Cartels and other Restraints of Competition provides in the new article 4 section 2bis a concretizing definition of market power as follows: “An undertaking with relative market power is an undertaking on which other undertakings are dependent for the supply of or demand for goods or services in such a way that there are no adequate and reasonable opportunities for switching to other undertakings”.
According to the opinion expressed in this contribution, the quoted new provision to bargaining power in the vertical relation of supply market (B2B and B2C) and demand market (B2B) is merely a concretization of the basic norm in article 2 of the Swiss Civil Code (bid to act in good faith in the exercise of rights and ban of the manifest abuse of a right) in connection with articles 27/28 of the Swiss Civil Code (protection of legal personality against excessive restriction and infringements). Therefore, Civil and Commercial Courts should always…
