SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
• such activities are neither planned nor foreseeable. ComCo has recently modified the conditions of the exemption to notify in a consultation (Worldline Mer - chant Service Italia S.p.A./Credito Emiliano S.p.A., 2024), introducing two additional criteria. For the exemption to apply, in addition to both conditions outlined above, the following two conditions have to be met: • the products or services of the joint venture could not be potentially acquired abroad by Swiss cus - tomers, ie, these products or services are also not potentially offered or delivered in or into Switzer - land; and • the geographic markets where the joint venture is active do not comprise Switzerland (in particular, these markets are defined as national or non-Euro - pean). 2.9 Market Share Jurisdictional Threshold Jurisdictional thresholds in Switzerland are initially based on turnover. The additional notification obliga - tion based on one party’s confirmed dominance (see 2.5 Jurisdictional Thresholds ) requires that the con - centration concerns either: • that market; • an adjacent market; or • a market upstream or downstream thereof. Therefore, the confirmed dominance of one party is not, in itself, sufficient to trigger a notification obliga - tion. Conversely, it is not required that there be a substan - tive overlap in the market where one party is dominant for this threshold to be met; however, it is sufficient that the transaction has a competitive relationship with such a market. 2.10 Joint Ventures Three types of joint ventures are subject to merger control: • the acquisition of joint control over an existing joint venture constitutes a concentration if the joint ven -
ture performs all the functions of an autonomous economic entity on a lasting basis; • the creation of a new joint venture constitutes a concentration if the joint venture performs all the functions of an autonomous economic entity on a lasting basis and if the business activities of at least one of the controlling undertakings are trans - ferred to the joint venture; and • the acquisition of joint control over an existing undertaking constitutes a concentration. 2.11 Power of Authorities to Investigate a Transaction If the jurisdictional thresholds are not met, ComCo does not have the power to investigate a transaction or impose any corrective measures if such a transac - tion creates or strengthens a dominant position likely to eliminate effective competition. 2.12 Requirement for Clearance Before Implementation Implementation of a transaction must be suspended prior to clearance. 2.13 Penalties for the Implementation of a Transaction Before Clearance If a notifiable transaction is executed before clear - ance, the undertakings concerned may be fined up to CHF1 million. The responsible individual(s) may, in addition, be fined up to CHF20,000. These fines are made public. Fines have also been imposed in cases involving foreign-to-foreign transactions. 2.14 Exceptions to Suspensive Effect The parties may request ComCo to authorise the implementation of the concentration prior to the review period. The parties must provide a valid justification for early implementation, such as situations in which the concentration would otherwise be jeopardised or in which suspending implementation during the review period could cause substantial harm to third parties. Special rules apply to concentrations of banks deemed necessary for creditor protection. Such concentrations are reviewed by FINMA, which may allow implemen - tation at any stage of the proceedings. 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
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