In two recent landmark judgements, Swiss Courts have provided important clarifications on the protection of business secrets and access to files in cartel cases.
Harmful internal business communication subject to publication
In 2011, the Swiss Competition Commission (“ComCo”) imposed a fine on Nikon for suspected violations of Swiss competition law. Nikon appealed the decision and in a separate proceeding also its publication before the Swiss Federal Administrative Court. The publication contained verbatim quotes of self-incriminating and partly pejorative e-mail communication between employees as well as between employees and external partners. Nikon was concerned about possible negative effects on its reputation and its future business.
The Swiss Federal Administrative Court’s decision to largely dismiss the appeal against the publication was now upheld by the Swiss Federal Court. The Swiss Federal Court found in the last instance that facts serving to prove or substantiate anti-competitive practices are neither protected as business secrets under Swiss competition law nor as sensitive personal data under Swiss data protection law. According to the Court, damage to the public reputation that normally follows a sanction by ComCo must be accepted even if its decision is later reversed on appeal. E contrario, and as explicitly confirmed by the Federal Administrative Court, internal communication that is not necessary for the reasoning of a decision, notably if the respective facts do not constitute anti-competitive practices, may not be published or only by way of a non-confidential description.
The Court gave short shrift to an alleged infringement of the presumption of innocence under Article 6 ECHR. It emphasized that Article 6 does not prevent authorities from informing the public about ongoing criminal investigations and even allows disclosure of the suspect’s identity if there is a legitimate interest. According to the Court, this is generally the case in competition matters also considering that ComCo, when publishing the opening of a cartel investigation, is legally required to name the companies involved. In this respect, the Court stressed that competition proceedings are only similar to criminal law so that criminal-law guarantees under Article 6 ECHR need not necessarily apply with full stringency.
The case did not involve leniency applications. Therefore, the protection of information provided by leniency applicants remains open. However, some indication was provided in another recent case before the Swiss Administrative Court.