SWITZERLAND Law and Practice Contributed by: Nicolas Wehrli and Melanie Wilhelm, Loyens & Loeff
6. Recent Legal Developments 6.1 Significant Court Decisions or Legal Developments There are several legislative processes that could affect energy and infrastructure M&A transactions in Switzerland. Some of these laws are already in effect, while others are still under discussion in the legisla- tive process. As part of the Swiss corporate law reform, which came into force on 1 January 2023, new legal provi- sions have been introduced that provide opportuni- ties for the flexible structuring of M&A transactions. Interim dividends are now explicitly permitted under Swiss law, and allow the avoidance of “cash for cash” payments so that the liquidity management after the acquisition can be improved. In addition, a capital fluctuation band can now be introduced, allowing the board of directors to increase or reduce capital within a certain range. This enables the board of directors to issue shares as acquisition currency. In May 2023, the Federal Council published a revised draft amendment to the Swiss Cartel Act. Among other changes, it proposes a new substantive test for the Swiss Competition Commission (ComCo) to assess whether or not to prohibit a transaction sub- ject to merger control review. The current creation or strengthening of dominant position (CSDP) test would be replaced by the significant impediment of effec- tive competition (SIEC) test, aligning with international practice. Importantly, the draft amendment does not propose lowering the turnover thresholds required for compulsory notification of a transaction to ComCo. These thresholds remain relatively high compared to international standards, which is generally favourable from a deal-making perspective. The revised Swiss data protection law came into force on 1 September 2023. One of the main goals of the new law was to achieve compatibility with EU law (GDPR). The compliance of the target company with the newly introduced law should be observed, and the data disclosure during the transaction process should also take the new data protection act into considera- tion.
See also 1.1 Energy and Infrastructure M&A Market under “Foreign Direct Investment Screening” and the “EU Artificial Intelligence Act”, and the Switzerland Trends and Developments chapter in this Guide. 6.2 Key Developments in Renewable Energy and Cutting Emissions Legal Developments in Renewable Energy Some of the most significant legal developments in Switzerland have been the approval and upcoming implementation of the revised Swiss Electricity Supply Act and Swiss Energy Act, effective from 1 January 2025. These reforms are central to the Energy Strategy 2050, which aims to ensure long-term energy security while accelerating the expansion of renewable energy. The legislation introduces new funding instruments and regulatory frameworks for electricity production, transport, storage, and consumption. It also mandates a hydropower reserve to stabilise Winter supply. The Swiss CO₂ Act and the newly enacted Swiss Cli- mate and Innovation Act (CIA) also came into force on 1 January 2025. These laws aim to reduce greenhouse gas emissions by 50% by 2030 and achieve net-zero emissions by 2050, aligning Switzerland with its Paris Agreement commitments. The CO₂ Act introduces carbon pricing through: • a CO₂ levy of CHF120 per tonne on thermal fuels used for heating; and • the Swiss Emissions Trading System (ETS), allow- ing companies to trade emission allowances or seek exemption by committing to reduction plans. Political Objectives and Support for Decarbonisation Switzerland’s political and regulatory objectives are clear. • Reduce reliance on imported fossil fuels. • Promote domestic renewable energy (hydropower, solar, wind and biomass). • Improve energy efficiency. • Phase out nuclear energy (though this is under political review). • Achieve net-zero emissions by 2050.
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