SWITZERLAND Law and Practice Contributed by: Alexander Vogel, Marc Baumberger and Selina Bruderer, MLL Legal
Federal Act on Cartels Key provisions include: • unlawful agreements affecting competition (Article 5); • unlawful practices by dominant undertakings and undertakings with relative market power (Article 7); and • notification thresholds regarding merger control (Article 9). Financial market regulations To the extent applicable, key aspects of the financial market are governed by the Swiss Financial Market Infrastructure Act (“FinMIA”) and the Swiss Financial Market Infrastructure Ordinance (“FinMIO”). 3.2 Anti-Money Laundering Compliance There are no specific rules addressing anti-money laundering (AML) in a JV context. Nevertheless, the obligations in the Swiss Anti-Money Laundering Act (“AML Act”) apply to a JV if it qualifies as a financial intermediary or dealer who hold assets on behalf of others, or who assists in the investment or transfer of assets. Individuals, including legal entities, who hold assets belonging to others or provide assistance in the man - agement or transfer of such assets fall under the category of “financial intermediaries”, as defined by the AML Act. This includes activities such as credit transactions and electronic transfers. Compliance includes fulfilling due diligence requirements, such as identifying beneficial owners, and belonging to a self- regulatory organisation or being directly supervised by FINMA. The scope of financial intermediaries extends beyond banks and securities dealers to include those providing payment services or managing payment instruments. 3.3 Sanctions, National Security and Foreign Investment Controls Sanction Laws Switzerland has a sanction regime in place based on the Federal Act on the Implementation of Sanctions (known as the “Embargo Act”). The State Secretariat for Economic Affairs maintains a publicly available list of sanctioned individuals and entities.
Lex Koller Lex Koller (officially known as the “Federal Act on the Acquisition of Real Estate by Persons Abroad”) is a Swiss law that regulates the acquisition of real estate properties by foreign individuals and legal entities (companies) in Switzerland. It was enacted to control and limit the extent to which non-resident foreigners can purchase Swiss real estate. The law’s primary aim is to prevent speculative buying and to ensure that Swiss citizens have fair access to their country’s property market. The law imposes restrictions on the acquisition of cer - tain real estate by foreigners. In general, non-resident individuals and legal entities are subject to limitations/ approval requirements when purchasing properties such as residential real estate and vacation homes. Different cantons (Swiss administrative regions) may have varying rules and regulations related to the implementation of Lex Koller. Therefore, if a JV con - tains real estate assets, a specific review on potential Lex Koller implications should be conducted early in the process. If the real estate is necessary for the JV’s business conduct, a government ruling may be obtained to waive the applicability of this legislation. Foreign Direct Investment Foreign direct investment (FDI) makes a significant contribution to Switzerland’s economy; therefore, Switzerland has been very open towards FDI and has not yet introduced a general structured framework for the systematic assessment of FDI. Currently, FDI control only applies to certain industries and sectors, particularly banking/securities and real estate, where prior government approval is required. A number of additional business activities require a licence from the authorities, including in the following fields: avia - tion, telecommunications, nuclear energy and radio/ television. However, in recent years, Switzerland’s open policy has been questioned, and there are politi - cal initiatives to implement a more restrictive policy in the future. Government procedures to implement the Swiss Federal Act on the Control of Foreign Invest - ments (the “Investment Control Act”; ICA) started back in 2018, with consultation on the first draft of the new law ending in September 2022. The consultation bill was rejected by most participants, and the Federal Council decided to undertake substantial revisions
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