SWITZERLAND Law and Practice Contributed by: Shelby R du Pasquier, Patrick Hünerwadel, Valérie Menoud and Marcel Tranchet, Lenz & Staehelin
ly be observed is the financing of the construction and operation of new regional power plants (sometimes known as green power projects). 8.2 Public-Private Partnership Transactions Switzerland does not have specific federal or canton- al legislation dealing with public-private-partnership (PPP) transactions. The applicable rules therefore vary depending on the sector involved. An important aspect of PPP transactions when these are structured within public procurement projects will be to abide by the rules for participation and awarding public projects. At the federal level, these rules are set out in the Federal Public Procurement Act (PPA) and, where the Swiss federal government is party to a project, the rules of the PPA must be complied with. In addition, Switzerland is a signatory to the WTO Agreement on Government Procurement that applies to procurements by the Swiss Confederation and the cantons, as well as public companies in the water, electricity and transport sectors. The federal and cantonal bodies have implemented an electronic platform for public procurement purposes called “Simap”. It offers a procedure for public con- tract-awarding authorities to post their tenders and any relevant tender documents. Bidders and inter- ested companies are given an overview of all exist- ing contracts across Switzerland and documents are freely accessible. 8.3 Governing Law Depending on the sector of a project and its scope, relevant documents and information may need to be submitted to competent authorities for information or for approval. This will typically be the case in relation to construction, zoning and environmental issues and concessions. 8.4 Foreign Ownership Jurisdiction over public sector projects is allocated between federal, cantonal and municipal authorities, depending upon the sector involved. At a federal level, the main responsible government body is the Depart- ment of the Environment, Transport, Energy and Com- munications (DETEC) and the agencies attached to
it. The DETEC is in charge of transport, energy, com- munications, aviation and the environment. The Federal Communications Commission is the regulatory body for the telecommunications sector. It is responsible for granting licences for the use of radio communication frequencies and promulgating access conditions when service providers fail to reach an agreement. The Swiss Federal Electricity Commission is Switzer- land’s independent regulatory authority in the elec- tricity sector. It monitors electricity prices as well as electricity supply security and regulates issues relating to international electricity transmission and trading. In Switzerland, cantonal and municipal bodies generally have authority over natural resources such as oil, gas and mineral resources. With regard to state ownership in Switzerland, three central sectors used to be fully state-owned. • Railways – the Swiss federal government is cur- rently the sole shareholder of the Swiss Federal Railways, which used to be a government institu- tion. Shareholder responsibilities of the federal government are performed by the General Sec- retariat of the DETEC in co-operation with the Federal Finance Administration. • The postal service – Swiss Post is still entirely owned by the Swiss government as a public limited company. • Telecommunications services – Swisscom (a tel- ecommunications provider) is also a public limited company but its shares are listed on the SIX Swiss Exchange. Currently, the Swiss federal government holds the majority of the share capital and the vot- ing rights. 8.5 Structuring Deals The preferred legal form of a project company is the stock corporation. Sometimes, international holding structures are also used. Tax issues should always be considered when setting up the structure. With regard to foreign investment issues, there are only a few restrictions, and non-discriminatory com- petition between foreign and domestic entities pre-
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