SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
3.8 Pre-Notification Discussions With Authorities The parties can and typically do engage in pre-notifi - cation with the Secretariat. The parties submit a draft filing for the Secretariat’s review and comment on any additional information required for the notification to be considered complete. In complex transactions, pre-notification is generally welcomed by the Secre - tariat and highly recommended. 3.9 Requests for Information During the Review Process The Secretariat regularly requests information during the review process. If the request pertains to informa - tion the Secretariat considers necessary for the com - pleteness of the notification, the review period begins only after such information has been submitted. The Secretariat may also request additional information that is not required for completeness of the notifica - tion. The parties are obliged to provide such information within the deadline set by the Secretariat, but the request does not suspend the review period. 3.10 Accelerated Procedure Prior to the notification of a concentration, the under - takings concerned and the Secretariat may mutually agree on the details of the notification’s content. The Secretariat may grant exemptions from the obligation to submit specific information or documents. In prac - tice, this is particularly relevant for foreign-to-foreign mergers with limited impact on the Swiss market.
• information regarding market entries in the past five years and expected market entries, as well as the market entry costs. In addition, copies of the following documents need to be provided: • the most recent annual accounts and reports of the undertakings concerned; • any agreements affecting or related to the transac - tion; • in the case of a public takeover, offer documenta - tion; and • reports, analyses and business plans made with regard to the concentration, to the extent they contain relevant information for the competitive assessment of the concentration. The notification form may be submitted in any offi - cial Swiss language (ie, German, French or Italian). Accompanying documents may also be submitted in English. There are no requirements for the formalisa - tion of submitted documents, such as certification, notarisation or apostillation. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification There are no penalties for incomplete or inaccurate notifications. However, the review period will only commence once the notification is complete. Within ten days of submission of the notification, the Secre - tariat will confirm its completeness or request addi - tional information. 3.7 Review Process ComCo is required to notify the undertakings con - cerned within one month (Phase I) of receiving the complete notification whether it intends to open an investigation. If no such notice is given within that time period, the transaction may be implemented. ComCo often provides the companies in such cases with a “comfort letter” stating that it considers the concen - tration unobjectionable. If ComCo decides to open an investigation, this must be completed within four months unless ComCo is prevented from doing so for reasons attributable to the undertakings concerned (Phase II).
4. Substance of the Review 4.1 Substantive Test
The substantive test is based on a dominance test supplemented by an additional test on the remaining degree of competition. According to this “dominance- plus test”, a concentration may only be prohibited if: • the transaction creates or strengthens a dominant position; • that dominant position is liable to eliminate effec - tive competition in the relevant market; and
623 CHAMBERS.COM
Powered by FlippingBook