SWITZERLAND Law and Practice Contributed by: Nicolas Wehrli and Melanie Wilhelm, Loyens & Loeff
gations, particularly insider trading rules, ad hoc dis- closure obligations, confidentiality undertakings, data privacy obligations and the principle of equal treat- ment of shareholders. The permissibility of any disclo- sure of due diligence information must be analysed on a case-by-case basis in relation to the specific infor- mation, the bidder and the intended transaction and its implications for the company. Before any confidential information is disclosed, the company should ensure that the bidder has entered into appropriate non-disclosure undertakings and that the due diligence information is only disclosed on a limited, need-to-know basis. Information that is sensi- tive from a commercial or antitrust perspective should be disclosed to clean teams only. The company has no general obligation to provide due diligence information to potential or actual bidders. However, if a company has provided or will provide due diligence information to actual or potential bid- ders, all actual (but not other potential) bidders have the right to receive the same information. 7.2 Restrictions Several legal and regulatory factors may restrict access to information during the due diligence pro- cess for energy and infrastructure companies in Swit- zerland. • Confidentiality obligations – regulatory filings, envi- ronmental permits, grid access rights, and exploi- tation licences may contain sensitive information protected by confidentiality laws or third-party rights. Disclosure may require prior consent from authorities or affected parties. • Data protection laws – the Swiss Federal Act on Data Protection and the GDPR impose restrictions on the processing and sharing of personal data. This may limit access to employee, customer, or stakeholder information during due diligence. Com- panies must ensure that any personal data shared complies with applicable privacy regulations. • Contractual limitations – long-term energy sup- ply agreements, financing arrangements, and joint ventures often contain confidentiality clauses that restrict disclosure. In such cases, buyers may need
to rely on summaries or redacted versions unless waivers are obtained. • Critical infrastructure scrutiny – transactions involv- ing strategic assets, such as energy transmission networks, water supply systems, or transport infrastructure, may attract additional scrutiny, particularly where foreign investment is involved. While Switzerland does not currently have a formal foreign investment screening regime, political and regulatory attention may arise in sensitive cases. A draft law proposing a foreign investment review mechanism for acquisitions by foreign state-con- trolled investors in critical sectors is under consid- eration. A requirement to launch a public tender offer applies if the target’s shares are listed on a Swiss stock exchange and more than 33⅓% (or a higher thresh- old up to 49% as stipulated in the target company’s articles of incorporation) of the voting rights are acquired by the bidder (mandatory bid), unless there is an opt-out clause. Otherwise, a bid will usually only be made public after the parties have reached a defini- tive agreement. The offer is made public by way of an offer prospectus. In the case of a hostile bid, a bidder may publicly announce the intention to acquire the target’s shares. In such scenario, the hostile bidder may be required to announce a public offer under the “put up or shut up” rule. 8.2 Prospectus Requirements The publication of a prospectus is required by any per- son making a public offer for the acquisition of securi- ties or seeking the admission of securities for trading on a trading venue. However, if information exists that is deemed equivalent in content to a prospectus in connection with shares offered in a stock-for-stock takeover, a prospectus may not need to be published. A similar exception applies to mergers, spin-offs and similar transactions, provided the information is deemed equivalent in content to a prospectus. 8. Disclosure 8.1 Making a Bid Public
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