Marquard advises on all aspects of Swiss and EU competition law (horizontal and vertical agreements, dominance abuse, merger control and civil antitrust law) and represents clients in proceedings before competition authorities and courts. He is particularly experienced in public procurement-related competition law matters such as bid-rigging. Marquard is a member of the five-headed steering committee of the global CMS competition group, responsible for setting the strategy of more than 225 competition lawyers worldwide.
What inspired you to pursue a career as a competition lawyer?
Koen Lenaerts (now president of the European Court of Justice) and Jacques Steenbergen (now president of the Belgian Competition Authority), during my Erasmus exchange year at the University of Leuven in 1997–1998. I found their lectures on EU law, in general, and EU competition law, and their introduction to the concepts of competition law particularly inspiring.
What are the main legal challenges that large tech companies such as Google and Amazon pose with regard to competition enforcement?
One of the challenges in applying competition law to the GAFAs of this world is that their main “currency” is data, not money. Competition enforcers around the world still struggle to tackle the impact those companies have on competition when applying traditional rules to their market behaviour. At the same time, applying competition law to conduct related to the handling of big data raises questions on the interplay between competition law and other areas of law such as, in particular, data protection, and on the role competition enforcers around the globe are supposed to play in monitoring such conduct.
Do you think an aggressive fine regime is an effective deterrent to anticompetitive practice?
I would say that depends very much on the kind of company that is sanctioned and to what extent profit generated by the anticompetitive practice is skimmed off by the fine. A fine of €1 million imposed on a small to medium-sized construction company may have a significant deterrent effect, whereas one of €1 billion imposed on a company like Google (Alphabet) may not. In Switzerland, for example, I have seen companies that were investigated for a potential abuse of their dominant position and upheld their conduct during the entire investigation and appeal proceedings, most likely since they knew that the direct and indirect profits generated by conduct found to be unlawful several years later would still significantly exceed the amount of a potential fine.
What challenges does covid-19 pose to competition law, and how are authorities tackling them?
Apart from potential distortion of competition resulting from state aid provided to companies in industry sectors which were or still are particularly affected, collaboration among competitors was and is one of the main new issues resulting from covid-19 to be dealt with under competition law. Horizontal cooperation agreements can contribute to overcome some of the challenges of the current crisis such as supply shortages. At the same time, such cooperation may involve agreeing on sensitive matters like quantities or an allocation of customers or territories. In order to foster meaningful collaboration, some competition authorities have published declarations that provide guidance to companies (see, for example, the joint declaration of the European Competition Network of 23 March 2020). Other authorities like the Swiss Competition Commission have, in my opinion, acted too cautiously.
Can positive effects on sustainability justify otherwise anticompetitive behaviour?
Competition regulation should leave room for justification of, for example, collaboration among competitors if such collaboration aims at contributing to public interests such as protection of the environment, fair trade and animal welfare. The problem is that traditional understanding of competition law only allows for justifications that are based on economic efficiencies, whereas public interests often do not translate into such efficiencies. I believe though that existing competition law can be applied in a modern way and take changes in society into account without having to be amended. However, competition authorities should issue guidelines in that regard to provide a sufficient level of legal certainty to companies.
In what ways does CMS von Erlach Poncet distinguish itself from competition in the market?
Being part of CMS, CMS Switzerland is one of the very few truly international business law firms in the Swiss legal market. With its 4,800 lawyers working from 77 offices in 43 countries, CMS is a top-10 global law firm. The CMS competition group alone consists of more than 225 competition lawyers worldwide. Having direct access to the experience and know-how of my competition colleagues in CMS offices abroad has time and again proven to be – particularly in the field of competition law with its effects-based approach – an invaluable asset.
Where, in your opinion, does the future of the practice area lie?
As in other areas of law, digitalisation will have an impact on both the way we provide our services to clients and the topics competition lawyers will have to advise on in the future. In addition, I believe that the Swiss market may see more boutique law firms with a clear focus, at firm level, on competition law. Furthermore, there is likely to be more work in the area of merger control if the current efforts to amend the rather permissive Swiss merger control regime will result in the introduction of the ‘significant impediment to effective competition’ test and, possibly, a lowering of the notification turnover thresholds. And also Swiss competition lawyers may have to add foreign investment control to their skill set. Finally, we may see an increase in civil antitrust cases and, in particular, more focus on the compensation of cartel victims – an aspect of Swiss competition law that is, compared to other jurisdictions, still very underdeveloped for various reasons.
What is the best piece of career advice you have received?
Dare to focus on competition law from an early stage of your career and add a particular edge to your competition profile in order to distinguish yourself from your competitors in the legal market.
Marquard Christen has “specialist knowledge” of the Swiss competition market and can “comprehend complicated facts” and cases with ease.
Marquard Christen is a partner at CMS Switzerland specialising in competition and public procurement law.
Marquard advises Swiss and international companies on all aspects of Swiss and EU competition law (horizontal and vertical agreements; dominance abuse; merger control; and civil antitrust law) and represents them in proceedings before competition authorities and courts. Over the past 15 years, he has gained special knowledge in various industries, including automotive, construction, consumer goods, pharmaceutical, IT, telecommunication and payment systems. Additionally, he advises clients on compliance matters, with a particular focus on antitrust law (development of compliance programmes, compliance and dawn raid trainings and antitrust law audits).
Marquard graduated from the universities of Fribourg (summa cum laude) and Leuven (EU law); and completed postgraduate studies in Sydney and Geneva (international law). He was admitted to the Bar in 2003, and is a member of the "Studienvereinigung Kartellrecht" (Antitrust Law Association) and the Zurich Bar Association's competition law practice group. Marquard is a member of the global CMS competition group’s steering committee, and heads the public procurement practice group. He is also an investigator appointed by the Swiss Bankers Association with regard to the enforcement of the Swiss Code of Conduct on the Due Diligence of Banks; and a member of the Swiss Bar Association’s expert committee on digitalisation.
Marquard regularly lectures and publishes on competition and public procurement law. He is fluent in German, English and French, and also speaks Spanish and Dutch.
CMS von Erlach Poncet Ltd is a leading Swiss business law firm and a member of CMS, a top 10 global law firm. The CMS competition group consists of over 190 competition lawyers.