SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
5.3 Legal Standard The law does not set a standard that remedies must meet to be deemed acceptable. 5.4 Negotiating Remedies With Authorities Other than in EU merger control proceedings, there are no procedural provisions under Swiss law regarding remedies, such as the timing of their negotiations. The most appropriate moment to initiate remedy negotia - tions must be determined on a case-by-case basis. ComCo does not depend on the parties to propose remedies; instead, it can order remedies on its own. However, in practice, the parties are closely involved in the development of potential remedies. 5.5 Conditions and Timing for Divestitures Swiss law distinguishes between conditions and obli - gations: conditions need to be fulfilled before the con - centration is completed, whereas obligations must be executed thereafter. In the latter case, according to the practice of ComCo, the remedy must be imple - mented within a specified period – that is, it is not sufficient for the parties to commit to divest certain assets “as early as possible”. If remedies are not fully complied with, ComCo may impose sanctions of up to CHF1 million or, in the case of repeated non-compliance, up to 10% of the overall turnover of all undertakings involved in Switzerland. 5.6 Issuance of Decisions At the end of Phase I proceedings (preliminary inves - tigation), ComCo may issue an order to clear the transaction if conditions and obligations are imposed. Without remedies, ComCo does not regularly issue a formal order at the end of Phase I; instead, it provides the parties with a comfort letter clearing the transac - tion. ComCo cannot prohibit the transaction at the end of Phase I. At the end of Phase II proceedings (in-depth investi - gation), a formal decision is issued to clear the con - centration (potentially subject to conditions and/or obligations) or to prohibit it.
5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions In 2017, ComCo issued a prohibition decision (one of only five prohibitions since 1996) regarding the pro - posed concentration of Ticketcorner and Starticket. There has not been a clearance subject to conditions and/or obligations recently. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications ComCo only considers ancillary restraints to the extent they are directly related to and necessary for the concentration. Whether these conditions are imposed is assessed according to criteria comparable to those applicable under EU competition law, as set out in the European Commission’s Notice on Ancillary Restraints. However, ancillary restraints that qualify under these criteria are not automatically covered by the transac - tion clearance but only upon specific request. Com - Co expects the notifying undertaking(s) to specifi - cally describe the ancillary restraints and provide an assessment in the notification as to why they qualify as directly related and necessary to the concentration. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The Secretariat regularly sends questionnaires to third parties, including customers and competitors, to solicit their opinions on a planned concentration and to gain a better understanding of market conditions and the competitive environment. These third parties do not have any formal procedural rights. ComCo is neither obliged to send out questionnaires nor to con - sider the replies received. Third parties also do not have legal standing to appeal merger decisions.
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