	Lex Mundi Global Merger Notification Guide
	Switzerland
	(Europe) Firm Pestalozzi Contributors Fabian Martens Updated 10 August 2023
Is there a regulatory regime applicable to mergers and similar transactions?	Yes, mergers and similar transactions are regulated by the Swiss Cartel Act ("*CartA") and by the Ordinance on the Control of Mergers of Enterprises*.
Identify the applicable national regulatory agency/agencies.	The national regulatory agency is the Swiss Competition Commission ("ComCo") together with its Secretariat. Appeals against decisions of the ComCo may be lodged with the Swiss Federal Administrative Court. Its decision is finally subject to review by the Swiss Federal Supreme Court.
Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate.	No. There is, however, an exception to this. Switzerland signed in 1999 a bilateral agreement on air transport with the European Union ("EU"). Concentrations between undertakings falling within the scope of this agreement shall be controlled by the institutions of the EU and in accordance with EU legislation.
Are there merger filing requirements? If so, where are they set out?	Yes, concentrations are subject to mandatory pre-merger notification in Switzerland in case certain requirements enumerated in Article 9 *CartA* (turnover thresholds or if an undertaking, which has been held dominant in a market is involved) are met.
What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)	The Swiss merger notification rules catch the following concentrations of undertakings (if certain turnover thresholds are met or if an undertaking, which has been held dominant in a market is involved): The merger of two or more previously independent undertakings; and Any transaction, in particular the acquisition of an equity interest or the conclusion of an agreement, by which one or more undertakings acquire direct or indirect control of one or more previously independent undertakings or parts thereof (Article 4(3) CartA). The addition "previously independent of each other" in the statutory provision makes clear that reorganizations within a group are not subjected to merger control notification. Furthermore, it is not specified what level of participation or what other factual circumstances are considered to grant control. This question must be assessed under the circumstances of the individual case. In general, "control" means the possibility of exercising decisive influence over significant issues of management and policy (e.g. strategy, budget, the composition of the management or board, etc.).
Is notification required for minority investments?	There is no statutory rule according to which certain pre-defined minority investments (stakes thresholds) would automatically lead to a notification obligation. Depending on the rights a minority shareholder is granted (e.g. veto rights), however, it may represent a change of control that may need to be notified (if certain turnover thresholds are met or if an entity, which has been held dominant in a market is involved).
Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test?	There is a local effects test that applies to foreign-to-foreign transactions. In the absence of effects on Switzerland, a joint venture does not need to be notified. This is considered to be the case if: It has neither activities nor turnover in Switzerland (in particular no deliveries into Switzerland); and Such activities or turnover in Switzerland can also be excluded in the future. Recently, the Secretariat of the ComCo has interpreted this exception from the notification obligations for foreign-to-foreign transactions more narrowly. As a result, even foreign-to-foreign transactions with indirect local effects may need to be notified, e.g. in case it can be expected that Swiss customers may purchase the product or services abroad. Whether or not this narrow interpretation prevails remains to be seen.
What are the relevant thresholds for notification?	Planned concentrations of undertakings must be notified if in the financial year preceding the concentration The undertakings concerned together reported a turnover of at least 2 billion Swiss francs worldwide, or a turnover in Switzerland of at least 500 million Swiss francs; and At least two of the undertakings concerned each reported a turnover in Switzerland of at least 100 million Swiss francs. In the case of insurance companies, "turnover" is replaced by "annual gross insurance premium income", and in the case of banks and other financial intermediaries by "gross income". Furthermore and independent of these thresholds, notification is also mandatory if one of the undertakings concerned has, in proceedings under the CartA and in a final and non-appealable decision, been held dominant in a market in Switzerland, and if the concentration concerns either that market or an adjacent market or a market upstream or downstream thereof.
Is the filing voluntary or mandatory?	The filing is mandatory if the prerequisites for notification are met.
Provide the time in which a filing must be made.	Concentrations subject to merger notification must be notified to the ComCo before they are implemented. Implementation can only be executed once clearance by ComCo has been granted.
Is there an automatic waiting period? If so, please specify.	For one month following notification, the undertakings concerned shall refrain from carrying out the concentration. The one month period starting from notification corresponds to the timeframe the ComCo has to decide whether or not an investigation procedure shall be launched (phase I). Should the ComCo fail to decide that there are grounds for an in depth-investigation of the concentration during this one month period, the concentration may be implemented without reservation. If an investigation procedure is opened (phase II), the ComCo will then have four months to decide whether or not to allow a concentration. Should the ComCo fail to render a decision during the four months of the investigation procedure, the concentration shall be deemed to have been authorized. Only for important reasons and upon request of the parties, the ComCo may authorize the undertakings concerned to carry out the concentration during the one month period. Important reasons may be e.g. in the case of a takeover of a failing company where early closing is essential for the success. Moreover, the ComCo may also decide at the outset of an in-depth investigation procedure whether the concentration may be carried out provisionally by way of exception or whether it should remain suspended. Such provisional permission is granted only in exceptional cases.
What are the form and content of the initial filing?	Notification of a concentration must be filed with the Secretariat of the ComCo. On the website of ComCo, there is a notification form that can be downloaded (www.weko.admin.ch). The notification has to mention: Name, domicile and a brief description of the business activities of the undertakings that are taken into consideration in the calculation of the relevant thresholds; Description of the concentration; Worldwide and Swiss turnover of the undertakings concerned; Information on all relevant products and geographical markets that are concerned by the concentration. Further information is required in relation to so-called "affected markets", i.e. markets in which one of the undertakings concerned has a market share of at least 20% or markets in which the combined market share of the undertakings exceeds 30% in Switzerland. In case there is no addition of market shares but one of the undertakings concerned holds a market share exceeding 30%, the notifying parties have to provide detailed information, if another undertaking concerned: Is active on a market up– or downstream to the affected market or on an adjacent market to the affected market; Plans an entry in the affected market or planned to enter into the affected market in the preceding two years; Holds intellectual property rights on the affected market; or Is active in the respective product market but not in the respective geographic market.
Are filing fees required?	For the preliminary investigation of one month (phase I), the Secretariat charges a flat fee of 5,000 Swiss francs. In case the Secretariat conducts an in-depth investigation, the Secretariat charges a fee according to the time spent on the case. The hourly rate is between 100 to 400 Swiss francs, depending on the urgency of the case and the salaried class of the employee in charge of the case. There are additional costs for travel, inquiry measures or experts. The Secretariat may require an advance on fees and costs.
Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?	After receipt of a notification, the ComCo decides within one month if there are grounds for conducting an in depth-investigation. If no such notice is given within that time period, the concentration may be implemented without reservation. The one-month period starts the day after the receipt of a notification deemed complete by the Secretariat. The Secretariat has to confirm the completeness of the notification to the parties within ten days. In case the preliminary investigation leads to an in depth-investigation (phase II), this will take up to four months. Only for important reasons and upon request of the parties, the ComCo may authorize the undertakings concerned to carry out the concentration during these one or four months periods (cf. also our answer to the question regarding automatic waiting periods). An extension of these deadlines by ComCo is not possible.
What is the substantive test for clearance?	The substantive test applied for the evaluation of concentrations is a qualified "dominance"-test. Pursuant to Article 10 CartA, the ComCo may prohibit the concentration or authorize it subject to conditions or obligations if it appears from the investigation that the concentration: Creates or strengthens a dominant position liable to eliminate effective competition, and Does not lead to a strengthening of competition in another market which outweighs the harmful effects of the dominant position.
What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)?	The ComCo has the following options: Approval of the merger; Approval is subject to certain conditions and obligations; or Prohibition of a merger.
Can parties proactively offer commitments to the agency to remedy identified competition concerns?	Yes, this is possible. The ComCo will also be open to discuss possibilities with the parties.
Describe the sanctions for not filing or filing an incorrect/incomplete notification.	If a concentration has been carried out without due notification, the ComCo may impose a fine of up to one million Swiss francs for the omission to notify a concentration. In addition, the ComCo will open a procedure ex officio to investigate the concentration. The procedure will consist of the same steps as when a concentration is correctly notified by the parties. The one-month deadline begins to run as soon as the ComCo possesses all the information that would have to be provided in a merger notification. If an implemented concentration is thereafter prohibited by the ComCo, the undertakings concerned are required to take the necessary steps to restore effective competition. The ComCo may require the undertakings concerned to make binding proposals as to how to restore effective competition. In case the undertakings do not comply with this duty or the ComCo does not accept the proposal, the ComCo may order: The separation of any combined undertakings or assets; The cessation of the controlling influence; or Any other measure to restore effective competition. Furthermore, any natural person who is responsible for carrying out the concentration without due notification may be liable to a criminal penalty of up to 20,000 Swiss francs.
Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger.	Any person responsible (e.g. board members) for carrying out a concentration without giving due notice thereof may be liable to a fine of up to 20,000 Swiss francs. An undertaking that: carries out a concentration without giving due notice thereof; fails to comply with the provisional ban on carrying out the concentration; fails to comply with a condition attached to the authorization; carries out a prohibited concentration; or fails to implement a measure intended to re-establish effective competition may be liable to a fine of up to one million Swiss francs.
Can the agency review and/or challenge mergers that are not notifiable?	No, the ComCo cannot review a concentration under the merger control rules that are not notifiable. The ComCo has, however, the possibility to review whether a merger qualifies as an anticompetitive behavior (unlawful agreements affecting competition and/or unlawful practices by dominant undertakings).
Describe the procedures if the agency wants to challenge an unnotified transaction.	After the opening of a procedure against an unnotified transaction and in case the ComCo decides to conduct an investigation, the Secretariat will publish the principal terms of the concentration notice and state the time limit within which third parties may communicate their opinions on the concentration.
Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments.	The Swiss turnover thresholds are rather high. Thus, the number of notifiable transactions in Switzerland is fairly limited. The focus of the ComCo's current activities is less on merger control issues, but rather on the enforcement of the rules against anticompetitive agreements and behavior. Within its merger activity, the ComCo examines with a high level of scrutiny mergers of companies in markets where it has already identified a (collective) dominance, in particular, mergers which could eventually strengthen a dominant position. On the other hand, the ComCo might show a very hands-off approach when the merger has already been cleared by the European Commission and does not raise particular issues on any Swiss market.
Other important/ notable information:	Not applicable.

Lex Mundi Global Merger Notification Guide

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Is there a regulatory regime applicable to mergers and similar transactions?

Yes, mergers and similar transactions are regulated by the Swiss Cartel Act ("CartA") and by the Ordinance on the Control of Mergers of Enterprises.

Identify the applicable national regulatory agency/agencies.

The national regulatory agency is the Swiss Competition Commission ("ComCo") together with its Secretariat. Appeals against decisions of the ComCo may be lodged with the Swiss Federal Administrative Court. Its decision is finally subject to review by the Swiss Federal Supreme Court.

Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate.

No. There is, however, an exception to this. Switzerland signed in 1999 a bilateral agreement on air transport with the European Union ("EU"). Concentrations between undertakings falling within the scope of this agreement shall be controlled by the institutions of the EU and in accordance with EU legislation.

Are there merger filing requirements? If so, where are they set out?

Yes, concentrations are subject to mandatory pre-merger notification in Switzerland in case certain requirements enumerated in Article 9 CartA (turnover thresholds or if an undertaking, which has been held dominant in a market is involved) are met.

What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.)

The Swiss merger notification rules catch the following concentrations of undertakings (if certain turnover thresholds are met or if an undertaking, which has been held dominant in a market is involved):

The merger of two or more previously independent undertakings; and
Any transaction, in particular the acquisition of an equity interest or the conclusion of an agreement, by which one or more undertakings acquire direct or indirect control of one or more previously independent undertakings or parts thereof (Article 4(3) CartA).

The addition "previously independent of each other" in the statutory provision makes clear that reorganizations within a group are not subjected to merger control notification. Furthermore, it is not specified what level of participation or what other factual circumstances are considered to grant control. This question must be assessed under the circumstances of the individual case. In general, "control" means the possibility of exercising decisive influence over significant issues of management and policy (e.g. strategy, budget, the composition of the management or board, etc.).

Is notification required for minority investments?

There is no statutory rule according to which certain pre-defined minority investments (stakes thresholds) would automatically lead to a notification obligation. Depending on the rights a minority shareholder is granted (e.g. veto rights), however, it may represent a change of control that may need to be notified (if certain turnover thresholds are met or if an entity, which has been held dominant in a market is involved).

Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test?

There is a local effects test that applies to foreign-to-foreign transactions. In the absence of effects on Switzerland, a joint venture does not need to be notified. This is considered to be the case if:

It has neither activities nor turnover in Switzerland (in particular no deliveries into Switzerland); and
Such activities or turnover in Switzerland can also be excluded in the future.

Recently, the Secretariat of the ComCo has interpreted this exception from the notification obligations for foreign-to-foreign transactions more narrowly. As a result, even foreign-to-foreign transactions with indirect local effects may need to be notified, e.g. in case it can be expected that Swiss customers may purchase the product or services abroad. Whether or not this narrow interpretation prevails remains to be seen.

What are the relevant thresholds for notification?

Planned concentrations of undertakings must be notified if in the financial year preceding the concentration

The undertakings concerned together reported a turnover of at least 2 billion Swiss francs worldwide, or a turnover in Switzerland of at least 500 million Swiss francs; and
At least two of the undertakings concerned each reported a turnover in Switzerland of at least 100 million Swiss francs.

In the case of insurance companies, "turnover" is replaced by "annual gross insurance premium income", and in the case of banks and other financial intermediaries by "gross income".
Furthermore and independent of these thresholds, notification is also mandatory if one of the undertakings concerned has, in proceedings under the CartA and in a final and non-appealable decision, been held dominant in a market in Switzerland, and if the concentration concerns either that market or an adjacent market or a market upstream or downstream thereof.

Is the filing voluntary or mandatory?

The filing is mandatory if the prerequisites for notification are met.

Provide the time in which a filing must be made.

Concentrations subject to merger notification must be notified to the ComCo before they are implemented. Implementation can only be executed once clearance by ComCo has been granted.

Is there an automatic waiting period? If so, please specify.

For one month following notification, the undertakings concerned shall refrain from carrying out the concentration. The one month period starting from notification corresponds to the timeframe the ComCo has to decide whether or not an investigation procedure shall be launched (phase I). Should the ComCo fail to decide that there are grounds for an in depth-investigation of the concentration during this one month period, the concentration may be implemented without reservation. If an investigation procedure is opened (phase II), the ComCo will then have four months to decide whether or not to allow a concentration. Should the ComCo fail to render a decision during the four months of the investigation procedure, the concentration shall be deemed to have been authorized. Only for important reasons and upon request of the parties, the ComCo may authorize the undertakings concerned to carry out the concentration during the one month period. Important reasons may be e.g. in the case of a takeover of a failing company where early closing is essential for the success. Moreover, the ComCo may also decide at the outset of an in-depth investigation procedure whether the concentration may be carried out provisionally by way of exception or whether it should remain suspended. Such provisional permission is granted only in exceptional cases.

What are the form and content of the initial filing?

Notification of a concentration must be filed with the Secretariat of the ComCo. On the website of ComCo, there is a notification form that can be downloaded (www.weko.admin.ch). The notification has to mention:

Name, domicile and a brief description of the business activities of the undertakings that are taken into consideration in the calculation of the relevant thresholds;
Description of the concentration;
Worldwide and Swiss turnover of the undertakings concerned;
Information on all relevant products and geographical markets that are concerned by the concentration. Further information is required in relation to so-called "affected markets", i.e. markets in which one of the undertakings concerned has a market share of at least 20% or markets in which the combined market share of the undertakings exceeds 30% in Switzerland.

In case there is no addition of market shares but one of the undertakings concerned holds a market share exceeding 30%, the notifying parties have to provide detailed information, if another undertaking concerned:

Is active on a market up– or downstream to the affected market or on an adjacent market to the affected market;
Plans an entry in the affected market or planned to enter into the affected market in the preceding two years;
Holds intellectual property rights on the affected market; or
Is active in the respective product market but not in the respective geographic market.

Are filing fees required?

For the preliminary investigation of one month (phase I), the Secretariat charges a flat fee of 5,000 Swiss francs. In case the Secretariat conducts an in-depth investigation, the Secretariat charges a fee according to the time spent on the case. The hourly rate is between 100 to 400 Swiss francs, depending on the urgency of the case and the salaried class of the employee in charge of the case. There are additional costs for travel, inquiry measures or experts. The Secretariat may require an advance on fees and costs.

Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?

After receipt of a notification, the ComCo decides within one month if there are grounds for conducting an in depth-investigation. If no such notice is given within that time period, the concentration may be implemented without reservation. The one-month period starts the day after the receipt of a notification deemed complete by the Secretariat. The Secretariat has to confirm the completeness of the notification to the parties within ten days. In case the preliminary investigation leads to an in depth-investigation (phase II), this will take up to four months. Only for important reasons and upon request of the parties, the ComCo may authorize the undertakings concerned to carry out the concentration during these one or four months periods (cf. also our answer to the question regarding automatic waiting periods). An extension of these deadlines by ComCo is not possible.

What is the substantive test for clearance?

The substantive test applied for the evaluation of concentrations is a qualified "dominance"-test. Pursuant to Article 10 CartA, the ComCo may prohibit the concentration or authorize it subject to conditions or obligations if it appears from the investigation that the concentration:

Creates or strengthens a dominant position liable to eliminate effective competition, and
Does not lead to a strengthening of competition in another market which outweighs the harmful effects of the dominant position.

What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)?

The ComCo has the following options:

Approval of the merger;
Approval is subject to certain conditions and obligations; or
Prohibition of a merger.

Can parties proactively offer commitments to the agency to remedy identified competition concerns?

Yes, this is possible. The ComCo will also be open to discuss possibilities with the parties.

Describe the sanctions for not filing or filing an incorrect/incomplete notification.

If a concentration has been carried out without due notification, the ComCo may impose a fine of up to one million Swiss francs for the omission to notify a concentration. In addition, the ComCo will open a procedure ex officio to investigate the concentration. The procedure will consist of the same steps as when a concentration is correctly notified by the parties. The one-month deadline begins to run as soon as the ComCo possesses all the information that would have to be provided in a merger notification. If an implemented concentration is thereafter prohibited by the ComCo, the undertakings concerned are required to take the necessary steps to restore effective competition. The ComCo may require the undertakings concerned to make binding proposals as to how to restore effective competition. In case the undertakings do not comply with this duty or the ComCo does not accept the proposal, the ComCo may order:

The separation of any combined undertakings or assets;
The cessation of the controlling influence; or
Any other measure to restore effective competition.

Furthermore, any natural person who is responsible for carrying out the concentration without due notification may be liable to a criminal penalty of up to 20,000 Swiss francs.

Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger.

Any person responsible (e.g. board members) for carrying out a concentration without giving due notice thereof may be liable to a fine of up to 20,000 Swiss francs.

An undertaking that:

carries out a concentration without giving due notice thereof;
fails to comply with the provisional ban on carrying out the concentration;
fails to comply with a condition attached to the authorization;
carries out a prohibited concentration; or
fails to implement a measure intended to re-establish effective competition may be liable to a fine of up to one million Swiss francs.

Can the agency review and/or challenge mergers that are not notifiable?

No, the ComCo cannot review a concentration under the merger control rules that are not notifiable. The ComCo has, however, the possibility to review whether a merger qualifies as an anticompetitive behavior (unlawful agreements affecting competition and/or unlawful practices by dominant undertakings).

Describe the procedures if the agency wants to challenge an unnotified transaction.

After the opening of a procedure against an unnotified transaction and in case the ComCo decides to conduct an investigation, the Secretariat will publish the principal terms of the concentration notice and state the time limit within which third parties may communicate their opinions on the concentration.

Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments.

The Swiss turnover thresholds are rather high. Thus, the number of notifiable transactions in Switzerland is fairly limited. The focus of the ComCo's current activities is less on merger control issues, but rather on the enforcement of the rules against anticompetitive agreements and behavior. Within its merger activity, the ComCo examines with a high level of scrutiny mergers of companies in markets where it has already identified a (collective) dominance, in particular, mergers which could eventually strengthen a dominant position. On the other hand, the ComCo might show a very hands-off approach when the merger has already been cleared by the European Commission and does not raise particular issues on any Swiss market.

Other important/ notable information:

Not applicable.

Lex Mundi Global Merger Notification Guide

Switzerland

Lex Mundi Global Merger Notification Guide

Switzerland

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