Non-binding ‘recommended price’ as concerted practices—The Federal Supreme Court of Switzerland rules on recommended prices that are communicated electronically to retailers

Abstract

In a recent case (Judgment 2C_149/2018 of 4 February 2021), the Federal Supreme Court of Switzerland [hereafter: FSC] assessed the conditions under which a so-called ‘recommended price’ qualifies as an unlawful vertical agreement restraining competition within the meaning of the Swiss Federal Act on Cartels and other Restraints of Competition [hereafter: CartA].1 While ‘standard’ recommended prices are typically set out in catalogues or lists, the recommended price in the case at hand was communicated to the points of sale via an electronic database system. The price automatically appeared to a retailer when he or she scanned the barcode of the product. To the best of our knowledge, this situation differs from recommended price cases that have been assessed under EU law to date. In particular, cases in which a manufacturer or distributor communicates its recommended price to retailers directly via the operator of an electronic database system are not considered by the Commission either in the actual2 nor in the draft3 version of its Guidelines on vertical restraints. The FSC thinking for this type of recommended price is therefore potentially of great interest to European competition authorities and to the practice.