On 24 May 2012, it was announced that the Competition Commission of Switzerland ("COMCO") has fined BMW around € 130 million (156 million Swiss francs) for hindering direct and parallel imports into Switzerland, by prohibiting authorised dealers within the European Economic Area ("EEA") from selling new cars of certain specific brands to customers in Switzerland.
In its decision dated 7 May 2012, COMCO found that BMW AG (Munich) had impeded parallel imports by virtue of a clause inserted into dealership contracts in the EEA. According to this clause, dealers within the EEA were forbidden from selling new cars of the BMW and MINI brands to customers outside of the EEA and therefore, by extension, in Switzerland (which is not part of the EEA). The investigation revealed that, from at least October 2010, competition within Switzerland had been appreciably affected as a result of the operation of this clause.
In the second half of 2010, COMCO received a number of complaints from customers in Switzerland who had attempted, unsuccessfully, to purchase BMW and MINI brand vehicles from dealers in the EEA. The authority therefore initiated an investigation in October 2010.
During the period in question, the Swiss franc had appreciated significantly against the Euro, thereby rendering purchases from the eurozone countries extremely attractive. However, by virtue of the offending clause, Swiss customers were unable to benefit from this appreciation. Moreover, this "sealing off" of the Swiss market had the effect of reducing competitive pressure on the sales price of new BMW and MINI brand cars, which remained up to 25% higher in Switzerland compared to Germany. The adverse effect on the market was increased by the significant market shares of the BMW and MINI brands in Switzerland.
This fining decision forms part of a wider campaign by which COMCO is endeavouring to prevent the "sealing off" of the Swiss motor vehicle market. Similar to the European Commission, the Swiss authority has drawn up rules governing the specific application of competition law provisions to the motor vehicle distribution sector.
As a result, BMW will now be required to adjust its dealership contracts within the EEA by removing the export prohibition clause and informing the relevant dealers accordingly.
In a similar decision adopted in December 2011, COMCO fined Nikon's Swiss subsidiary € 10 million for having restricted parallel imports of Nikon Imaging products by, inter alia, inserting into foreign distribution contracts (including contracts in many EU Member States) a clause prohibiting the export of such products to Switzerland (see VBB on Competition law, Volume 2011, No. 12, available at www.vbb.com).
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