SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
4.6 Non-Competition Issues ComCo does not consider non-competition issues, such as industrial policy, national security, foreign investment, employment or other public interest issues, in its review of planned concentrations. As an exception to that principle, the Cartel Act provides that in a concentration of banks that is deemed neces - sary by FINMA for reasons related to creditor protec - tion, the interests of creditors may be given priority (Article 10 (3) Cartel Act). In such a case, FINMA takes the place of ComCo. To give an example, 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 has been decisive for the assessment of admissibility and FINMA has assumed jurisdiction. If ComCo prohibits a concentration, the companies involved can request that the Federal Council of Switzerland authorise it on public interest grounds. In these instances, the Federal Council may consider both competition-related and non-competition-related factors when evaluating the concentration. To date, no such authorisation has been granted. New Federal Act on Foreign Direct Investment Control On 19 December 2025, the Swiss parliament approved a new law introducing foreign investment control into the Swiss legal framework. After disagreements between the two chambers, Parliament ultimately agreed on a “minimal version” that provides for the review of acquisitions of control over domestic com - panies by foreign state-controlled investors, subject to an approval process if certain thresholds are met (see 1.2 Legislation Relating to Particular Sectors ). The law establishes a notification and approval require - ment for certain takeovers of domestic undertakings by foreign state investors (prior to closing) that endan - ger or threaten Switzerland’s public order or security. The investment control rules will be separate from the merger control rules. The notification must be sub - mitted to the State Secretariat for Economic Affairs (SECO), but the competence not to approve a notifi - able investment will, however, be held exclusively by the Federal Council at the request of the EAER. See
9. Foreign Direct Investment/Subsidies Review for more details. 4.7 Special Consideration for Joint Ventures No specific rules apply to joint ventures, which are also assessed under the dominance-plus test (see 4.1 Substantive Test ). 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions ComCo may prohibit or interfere with a transaction only if the conditions of the dominance-plus test are met (see 4.1 Substantive Test ). If the companies do not comply with a prohibition decision, ComCo may take all the necessary steps to restore effective com - petition. In particular, ComCo may order the separa - tion of any combined undertakings or the cessation of the controlling influence. Additionally, ComCo may impose a fine of up to CHF1 million on companies that fail to comply with a prohibition decision. 5.2 Parties’ Ability to Negotiate Remedies A concentration may be cleared subject to certain conditions or obligations. The law does not specify the types of conditions or obligations that may be ordered. In practice, both divestitures and certain behavioural remedies have been implemented and the scope of these remedies is discussed by the par - ties with ComCo. Both behavioural and structural remedies have been used in practice and the choice depends on the char - acteristics of the affected markets and the identified competition concerns. While ComCo prefers struc - tural undertakings (ie, divestitures), it has been shown to be more open to behavioural remedies than the European Commission. In the case of international transactions, it is particu - larly important to co-ordinate the remedies offered with those offered by other competition authorities, in particular the European Commission. Remedies ordered by ComCo can only take into account competition issues.
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