SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
7.2 Contacting Third Parties The Secretariat regularly contacts third parties as part of its review process by sending out questionnaires. Where remedies are offered, the Secretariat may obtain assessments of such remedies from market participants (ie, market testing). 7.3 Confidentiality The fact that a notification is submitted is not made public. Conversely, the decision to open an investi - gation proceeding (Phase II) and the final decision of ComCo authorising or prohibiting a concentration are published in the Official Federal Gazette and in the Swiss Official Gazette of Commerce. Further, ComCo regularly publishes the reasoning for its merger deci - sions in its quarterly journal. The undertakings concerned may specify what infor - mation they consider to be business secrets and request that ComCo keep such information confiden - tial. In the event of a difference of opinion on whether certain information constitutes a business secret, ComCo will issue an appealable order. 7.4 Co-Operation With Other Jurisdictions The agreement between the EU and Switzerland on co-operation in applying their competition laws pro - vides a framework for co-operation between ComCo and the European Commission. By virtue of this agree - ment, information may, under limited circumstances, be shared with the other authority without the consent of the undertakings concerned (second-generation agreement). In such a case, ComCo must notify the undertaking concerned and invite it to express its views before transmitting the data to the European Commission. Regarding other authorities, such an exchange of information is permissible only with the parties’ con - sent. Typically, ComCo will then request a waiver letter from the undertakings concerned. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Decisions of ComCo in merger control cases are sub - ject to an appeal to the Federal Administrative Court.
The Federal Administrative Court has full jurisdiction to review ComCo’s findings of fact, legal assessment and sanctions or penalties under all aspects of fact and law. The judgment of the Federal Administrative Court may be appealed to the Federal Supreme Court. The Fed - eral Supreme Court can review the judgment only for conformity with the law. It is bound by the facts that have been established before the Federal Administra - tive Court unless they are manifestly incorrect or have been determined in violation of legal provisions. 8.2 Typical Timeline for Appeals An appeal to the Federal Administrative Court needs to be filed within 30 days of formal notification of ComCo’s decision. The duration of the appeals pro - ceedings varies but it usually takes significantly longer than a year. An appeal to the Federal Supreme Court must be filed within 30 days of receiving the formal notification of the judgment of the Federal Administrative Court. The duration of the proceedings regularly exceeds a year. 8.3 Ability of Third Parties to Appeal Clearance Decisions Third parties cannot appeal a clearance decision. 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements There is currently no general foreign investment control in Switzerland; however, special requirements apply in certain sectors where prior government approval is required (eg, banking, securities and real estate) – see 1.2 Legislation Relating to Particular Sectors . How - ever, the legal situation is going to change. Main Content On 19 December 2025, the Swiss parliament approved a new law introducing foreign investment control into the Swiss legal framework. The law provides for the review of acquisitions of control of domestic com - panies by foreign state-controlled investors through an approval process if certain thresholds are met.
627 CHAMBERS.COM
Powered by FlippingBook