The Swiss Doctrine of Relative Market Power in Competition Law

This text is the keynote speech delivered at the ECLA Annual Competition Law Conference, Mallorca, 22 May 2026. The speech examines Switzerland's 2022 revision of the Act on Cartels (Kartellgesetz, KG), which extended the control of abusive practices beyond dominant undertakings to undertakings with relative market power (Art. 4 para. 2bis KG). An undertaking has relative market power where another undertaking depends on it for the supply of or demand for goods or services and no adequate and reasonable alternatives are available. The speech situates the reform within Switzerland's broader response to the high-price island phenomenon and traces the suite of instruments deployed to facilitate parallel imports — including the worldwide prohibition on restricting passive sales, international exhaustion of trademarks and copyright, the unilateral Cassis de Dijon principle, and the abolition of tariffs on industrial goods — before explaining why these instruments have proven insufficient against private trade barriers imposed by non-dominant suppliers. It then draws a comparison with EU enforcement against territorial supply constraints (TSCs), surveying the Mondelēz, AB InBev, and Pierre Cardin decisions and identifying the enforcement gap that EU competition law currently faces. The main doctrinal section analyses the conditions for relative market power under Swiss law and reviews the four decisions issued by WEKO/COMCO to date: Fresenius Kabi/Galexis, Madrigall/Payot, Beiersdorf/Migros, and BMW/Swiss dealership. The speech also addresses the complementary instrument introduced in the Act against Unfair Competition prohibiting price discrimination in distance selling.