SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
• the transaction does not strengthen competition in another market, outweighing the negative effects of the dominant position. Compared to other jurisdictions, this threshold is high. Given this high threshold, in the past 22 years (the cur - rent merger control system was introduced in 1996), only the following five mergers have been prohibited by ComCo: • Berner Zeitung/Thuner Tagblatt (1998, notification withdrawn prior to formal prohibition); • Berner Zeitung/20 Minuten (2004, subsequently cleared upon appeal, subject to obligations); • France Télécom/Sunrise Communications (2012); • Ticketcorner/Starticket (2017); and • Schweizerische Post/Quickmail Group (2024). The dominance-plus test will soon be replaced by the SIEC test (a significant impediment to effective com - petition), as it is applied in the EU. This replacement is part of a major revision of the Cartel Act, which was approved by the Swiss parliament in December 2025. As the implementation of the regulations is currently being prepared and drafts are expected in the sec - ond quarter of 2026, the amended law (introducing the SIEC test) will presumably enter into force in 2027. The switch from the dominance-plus test to the SIEC test brings the substantive assessment in Swiss merg - er control in line with the international standard. Unlike the dominance-plus test, the SIEC test allows for intervention in cases of unilateral or “non-coordi - nated”, effects below the threshold for single mar - ket dominance. This makes it easier to target certain mergers that significantly impede competition, such as those leading to non-collusive oligopolies, either by prohibiting them or approving them subject to con - ditions and obligations. It is no longer necessary to establish that such mergers lead to the creation or strengthening of a dominant market position. 4.2 Markets Affected by a Transaction Markets are considered affected by the transaction if either two or more of the undertakings concerned jointly hold a market share of 20% or more in Swit - zerland or the relevant geographic market or in which
one of the undertakings concerned holds a market share of 30% or more in Switzerland or the relevant geographic market. 4.3 Reliance on Case Law ComCo regularly considers the practice of the Euro - pean Commission, in particular with regard to market definitions. Furthermore, case law from neighbour - ing countries of Switzerland will also be considered, specifically the practice of the German Federal Cartel Office. 4.4 Competition Concerns As mentioned in 4.1 Substantive Test , the current substantive test in Switzerland is a dominance-plus test. Applying this test, ComCo investigates unilateral effects, co-ordinated effects in the case of oligopolies, conglomerate effects, as well as vertical concerns and the elimination of potential competition. 4.5 Economic Efficiencies In the past, ComCo often did not consider economic efficiencies as a mitigating factor. In theory, efficien - cies may be taken into account if they are likely to prevent the elimination of effective competition. Furthermore, under the Swiss substantive test, eco - nomic efficiency gains in one market may outweigh the effects of creating or strengthening a dominant position in another market (see 4.1 Substantive Test ). This part of the test has not had practical relevance for a long time. In a recent case, however, for the first time, ComCo authorised a concentration (Gateway Basel Nord, 2019) explicitly based on that provision (Article 10 (2)(b) Cartel Act), which indicates the increased role of economic efficiencies in Swiss merger control law (see 10.2 Recent Enforcement Record ). It is expected that incorporating the SIEC test into the Swiss Cartel Act (as part of the major revision of the Cartel Act) will enable a more accurate assessment of merger-related efficiency gains. These efficiency ben - efits (eg, synergies) must be substantiated and verifi - able, which entails an increased obligation on the part of companies to cooperate and provide evidence.
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