SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
In the banking sector, the Swiss Financial Market Supervisory Authority (FINMA) may intervene if it con - siders that concentration risks impair creditors’ inter - ests. In such a case, FINMA takes the place of ComCo and invites it to submit an opinion. The takeover of CS by UBS by way of an absorption merger within the meaning of Article 3 (1)(a) and Article 4 (1)(a) of the Merger Act was subject to the review competence of FINMA as a merger within the meaning of Article 4 (3) (a) CartA because the protection of creditor interests was decisive for the assessment of admissibility and FINMA had assumed jurisdiction. Notification is compulsory if the relevant turnover thresholds are exceeded or if the undertaking con - cerned has been held to be dominant in a relevant market in a final and binding decision (see 2.5 Juris- dictional Thresholds ). There are no exceptions to this regime. 2.2 Failure to Notify If a notifiable concentration is implemented without prior notification, the undertaking that was obliged to notify may be fined up to CHF1 million. In such a case, ComCo may investigate the concentration ex officio and impose any necessary remedies. Addition - ally, the responsible individual(s) may be fined up to CHF20,000 each. There have been several instances where companies have been fined for failing to notify. These fines are publicly disclosed and to date, no individuals have faced them. 2. Jurisdiction 2.1 Notification If a notifiable concentration is not notified, its legal effect under civil law is suspended (ie, the closing is null and void). 2.3 Types of Transactions The following transactions constitute concentrations subject to merger control: • the merger of two or more previously independent undertakings; and
• any transaction, but in particular the acquisition of an equity interest or the conclusion of an agree - ment, by which one or more undertakings acquire direct or indirect control of one or more previously independent undertakings or parts thereof. 2.4 Definition of “Control” “Control” is understood under Swiss merger control as the ability to exercise a decisive influence over the activities of another undertaking by the acquisition of rights or shares or by any other means. It is irrelevant whether control is acquired directly or indirectly, de jure or de facto. The means of obtaining control may, in particular, involve the acquisition of the following, either individually or in combination: • ownership rights or the right to use all or part of the assets of an undertaking; and/or • rights or agreements that confer a decisive influ - ence on the composition, deliberations or deci - sions of the organs of an undertaking. In Switzerland, acquiring minority or other interests that do not grant control is not subject to notifica - tion. However, such acquisitions can be reviewed as potentially anti-competitive agreements. ComCo states that an acquisition may be classified as an anti- competitive agreement if the parties involved intend to co-operate. 2.5 Jurisdictional Thresholds In the first instance, Swiss merger control applies a turnover test. A concentration is notifiable if two turno - ver thresholds are cumulatively met: • in the financial year preceding the concentration, 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 report - ed a turnover in Switzerland of at least CHF100 million. Compared to international standards, these turno - ver thresholds are relatively high. The undertakings concerned are the merging parties (in the case of a merger) or the acquiring and acquired undertaking,
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