SWITZERLAND Law and Practice Contributed by: Beda Kaufmann, Alexander von Jeinsen, Daniel Raun and Laurent Riedweg, Advestra
ing ordinances. These provide, in particular, for the prohibition of insider dealing and market abuse, as well as disclosure obligations for significant share - holders and a framework for mandatory and voluntary tender offers. 5.3 Investment Funds Generally, foreign investors structured as investment funds are not subject to any regulatory review merely as a result of conducting FDI.
compared to international standards – are cumula - tively met in the financial year preceding the concen - tration, irrespective of the transaction at hand being an FDI, a domestic or a foreign-to-foreign transaction: • the undertakings concerned together reported a turnover of at least CHF2 billion or a turnover in Switzerland of at least CHF500 million; and • at least two of the undertakings concerned each reported a turnover in Switzerland of at least CHF100 million. The “undertakings concerned” are, in the case of a merger, the merging undertakings and, in the case of an acquisition of control, the controlling and the controlled undertakings. When calculating the turno - ver of an undertaking concerned, the turnover of the entire group (including subsidiaries, parent compa - nies, sister companies and joint ventures) is taken into account, whereas turnovers from intragroup business activities are excluded. When calculating the turno - ver of a target, however, the seller’s turnover can be excluded. In addition, notification of a concentration is compul - sory – irrespective of any turnover thresholds – if the undertaking concerned has in the past been found in a final decision to be dominant in a market in Switzer - land and if the concentration concerns the same mar - ket or an adjacent, upstream or downstream market. Review of Notifiable Concentrations The implementation of a notifiable concentration is prohibited prior to clearance, unless ComCo author - ises a provisional implementation upon request. The review process is divided into two phases. Phase I starts upon receipt of the completed notification. ComCo is required to notify the parties concerned within one month if it clears the transaction subject to remedies only or if it intends to open phase II pro - ceedings (in-depth investigation). If ComCo issues a comfort letter or if the one-month period expires with - out any notice from ComCo, the concentration may be implemented. ComCo must complete an opened Phase II investigation within four months, subject to any delays caused by the undertakings concerned. Only after conducting Phase II proceedings can Com - Co prohibit a notified concentration.
6. Antitrust/Competition 6.1 Applicable Regulator and Process Overview Merger Control
Swiss merger control is mainly governed by the Cartel Act and the Ordinance on the Control of Concentra - tions of Undertakings. The enforcement of merger control law is entrusted to ComCo, which consists of 11 to 15 members and is supported by the Secre - tariat of ComCo, which conducts investigations and prepares decisions. The Swiss merger control regime does not distinguish between FDI and other types of investment. Any trans - action meeting the relevant criteria is subject to the merger control regime. This also applies to foreign-to- foreign transactions. The following types of transactions constitute concen - trations that are subject to merger control: • the merger of two or more previously independent undertakings; and • any transaction – in particular, the acquisition of an equity interest or the conclusion of an agree - ment – by which one or more undertakings acquire direct or indirect control of one or more previously independent undertakings or parts thereof (this may include the acquisition of joint control over an existing joint venture or creation of a new joint venture). Compulsory Notification A notification to ComCo is compulsory if the follow - ing two turnover thresholds – which are relatively high
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