SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
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 has been decisive for the assessment of admissibility and FINMA has assumed jurisdiction. There are no specific rules for public takeover bids. ComCo should be contacted in advance for such bids to allow for co-ordination of its proceedings with those of the competent takeover board. It is also possible to request authorisation prior to the expiry of the review period in such cases or to propose arrangements on voting rights (see 2.15 Circumstances Where Imple- mentation Before Clearance Is Permitted ). 2.15 Circumstances Where Implementation Before Clearance Is Permitted A carve-out of affected businesses or assets to allow the closing of a global transaction before receiving clearance in Switzerland has not been accepted by ComCo to date. In particular, in the case of takeover bids, ComCo has, in practice, accepted arrangements limiting voting rights during pending merger control proceedings. 3. Procedure: Notification to Clearance 3.1 Deadlines for Notification There are no specific deadlines for notification. Noti - fication must be submitted prior to the implementa - tion of the concentration and the concentration must not be implemented prior to clearance (or grant of a derogation from the suspensive effect). Implementa - tion without notification (see 2.2 Failure to Notify ) or during pending proceedings (see 2.13 Penalties for the Implementation of a Transaction Before Clear- ance ) may result in a fine for the entity concerned of up to CHF1 million. In addition, the responsible individual(s) may be fined up to CHF20,000 each. 3.2 Type of Agreement Required Prior to Notification In principle, a concentration can only be notified once the parties have reached a binding agreement. In practice, ComCo accepts notifications at an earlier
stage when the parties can demonstrate a good-faith intent to reach a binding agreement, as expressed in a letter of intention or a memorandum of understanding. There have yet to be any cases in which a notification has been accepted at a stage where such good-faith intention could not be documented in writing. 3.3 Filing Fees In November 2024, the Ordinance on Fees under the Cartel Act was changed. Since 1 January 2025, Com - Co’s filing fee for Phase 1 and Phase 2 procedures is calculated on an hourly basis, with rates ranging from CHF100 to CHF400 (depending on the urgency of the matter and the function level of the staff carrying out the work). Based on experience from recent filings, the aver - age filing fee is expected to amount to approximately CHF5,000-25,000 in Phase 1. Usually, the notifying undertaking is requested to pay after the expiry of the review period. 3.4 Parties Responsible for Filing In the case of a merger, both merging parties need to jointly submit the notification. In the case of an acqui - sition of control, the notification obligation is upon the undertaking(s) acquiring control. If a joint notification is made, the notifying companies have to designate at least one joint representative. 3.5 Information Included in a Filing ComCo has published a form for notifying concen - trations. Essentially, the notifying undertaking(s) are required to submit the following information: • name, domicile and a brief description of the busi - ness activities of the undertakings concerned; • a description of the planned concentration, includ - ing the goals that are pursued with it; • the turnover, gross premiums or gross income, as the case may be, of the undertakings concerned in Switzerland and worldwide; • information on the relevant product and geographic markets affected, including market shares of the undertakings concerned and principal competitors for the preceding three years; and
622 CHAMBERS.COM
Powered by FlippingBook