SWITZERLAND Law and Practice Contributed by: Alexander Vogel, Marc Baumberger and Selina Bruderer, MLL Legal
3.5 Listed Companies and Market Disclosure Rules The parties involved in a JV that is listed on a stock exchange must adhere to the relevant listing rules. In Switzerland, for instance, the SIX Swiss Stock Exchange mandates issuers to disclose relevant price-sensitive information (ad hoc publicity), along with other reporting requirements (in particular, finan - cial reporting and regular reporting obligations). Depending on the circumstances, entering into a JV can trigger an ad hoc notification. Furthermore, specific regulations may govern direc - tors’ remuneration. These include prohibitions on cer - tain types of remuneration (eg, “golden parachutes”) and the requirement for shareholders to vote on remu - neration (say-on-pay). See 3.6 Transparency and Ownership Disclosure for information on disclosure obligations under Swiss law. 3.6 Transparency and Ownership Disclosure Non-Listed Companies A Swiss corporation (AG/SA) shall keep an up-to-date share register with information on its shareholders (direct beneficial owners) who have requested regis - tration (note that such registration is not mandatory, but it is necessary for shareholders to effect voting rights at shareholder meetings). This share register is not publicly available. This is also true for Swiss limited liability entities (GmbH/Sàrl). As a key difference, the quota holders (direct beneficial owners) must also be registered with the Commercial Register, thereby becoming public. Furthermore, any person who, alone or by agreement with third parties, acquires shares in a Swiss company (corporation or limited liability entity) whose participa - tion rights are not listed on a stock exchange – and thus reaches or exceeds the threshold of 25% of the share capital or right to vote – must within one month give notice to the company of the first name, surname and address of the natural person for whom it is ulti - mately acting (the ultimate beneficial owner; UBO). Based on such information, the board is obliged to keep a register of UBOs of the company. The register is not made public.
to this first draft, which shall be less cumbersome to businesses than the first proposal. The amended proposal was published in December of 2023 and focuses on the investments that are most critical to national security by investors that are directly or indirectly controlled by foreign states. The bill is now being discussed in parliament and is not expected to enter into force before 2026. However, once imple - mented, the Swiss ICA regulations (in their proposed form) are expected to become part of the typical due diligence process when implementing a Swiss JV. This will become relevant for sectors like defence equip - ment, electricity transmission and production, water supply, health, telecoms and transport infrastructure. 3.4 Competition Law and Antitrust Again, from a competition law perspective, one has to distinguish between the main types of JVs, each of which is subject to different competition rules. Corporate JV These JVs operate as autonomous economic entities in the long term, performing all necessary functions independently. If the JV is a newly created entity, it often involves a transfer of business activities from at least one of the controlling companies to be subject to merger control. Notification to the Swiss competition authorities is required prior to implementation if both of the following thresholds are met (see Article 9 of the Swiss Federal Act on Cartels): • the combined worldwide turnover of the under - takings concerned is at least CHF2 billion or the turnover in Switzerland is at least CHF500 million; and • at least two of the undertakings concerned each have a reported turnover in Switzerland of at least CHF100 million. Contractual JV These JVs do not meet the criteria for full-function JVs and are assessed under the rules applicable to hori - zontal agreements. Transactions involving co-opera - tive JVs may be notified prior to their implementation, pursuant to Article 49a of the Federal Act on Cartels.
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