SWITZERLAND Law and Practice Contributed by: Philippe Nordmann, Marion Bähler, Christian Hagen, Samuel Lieberherr and Dario Glauser, Walder Wyss Ltd
6. Competition Law 6.1 Merger Control Notification
6.3 Cartels Agreements that significantly restrict competition in a market for specific goods or services and are not justified on the grounds of economic efficiency, and all agreements that eliminate effective competition are unlawful. Agreements and concerted practices between com - petitors (horizontal agreements) related to prices or elements thereof (such as rebates), quantities or the allocation of territories or customers are presumed to eliminate effective competition (so-called hardcore restrictions). Such hardcore restrictions can hardly ever be justified on the grounds of economic effi - ciency. Agreements between undertakings at different lev - els of the production and distribution chain (vertical agreements) regarding fixed or minimum prices are presumed to eliminate effective competition and thus qualify as hardcore restrictions, irrespective of wheth - er the agreement has actual effects on the relevant market. The same is true for agreements on absolute territorial protection. Absolute territorial protection clauses prohibit passive sales – ie, they prohibit the fulfilment of unsolicited customer orders. 6.4 Abuse of Dominant Position Dominant undertakings and undertakings with relative market power behave unlawfully if, by abusing their position in the market, they hinder other undertakings from starting or continuing to compete (eg, by pric - ing below cost) or disadvantage trading partners (eg, by imposing excessive prices or unfair trading terms). Undertakings are considered dominant in a specific market if they are able, as suppliers or consumers, to behave to an appreciable extent independently of the other participants (competitors, suppliers or consum - ers) in the market. A dominant position is generally presumed for a company with a market share of 50% or more. However, under certain circumstances, a lower market share of approximately 40% is sufficient to qualify as a dominant market position. An undertaking has relative market power if other undertakings are dependent on it for the supply of or the demand for goods or services in such a way that
Mergers and acquisitions must be notified if certain turnover thresholds are reached. Planned concentra - tions of undertakings such as mergers, acquisitions of sole or joint control over a previously independent undertaking, as well as the setting up of full-function joint ventures (concentrations) must be notified to the Competition Commission (COMCO) before their implementation if the following turnover thresholds are reached in the financial year preceding the con - centration: • the undertakings concerned together reported a turnover of at least CHF2 billion, or a turnover in Switzerland of at least CHF500 million; and • at least two of the undertakings concerned each reported a turnover in Switzerland of at least CHF100 million. Regardless of whether the turnover thresholds described in the foregoing are reached, a concentra - tion must be notified if one of the undertakings con - cerned has been held (in a binding decision) to be dominant in a market in Switzerland, and the concen - tration concerns either the same market or an adja - cent, upstream or downstream market. 6.2 Merger Control Procedure The merger control procedure can include two phases: COMCO has one month for a preliminary assessment of a notified transaction (Phase I). Then, the concen - tration may be implemented, unless COMCO opens a Phase II investigation. The Phase II investigation must be completed within an additional four months. Before Phase I and, if relevant, Phase II is completed, con - centrations must not be implemented. COMCO assesses whether the notified concentration leads to the creation or strengthening of a dominant market position likely to eliminate effective competi - tion. The threshold for intervention seems compara - tively rather high. Also, COMCO can only clear con - centrations under certain conditions and obligations.
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