SWITZERLAND Law and Practice Contributed by: Beda Kaufmann, Alexander von Jeinsen, Daniel Raun and Laurent Riedweg, Advestra
6.2 Criteria for Antitrust/Competition Review CSDP Test The substantive test currently applicable is a “CSDP (creation or strengthening of dominant position) test”, which allows ComCo to prohibit a notified concentra - tion or authorise it subject to conditions and obliga - tions if the investigation indicates that the following criteria are met cumulatively: • the concentration creates or strengthens a domi - nant position through which effective competition may be eliminated; and • the concentration does not improve the condi - tions of competition in another market such that the harmful effects of the dominant position are outweighed. Only three mergers have been prohibited by ComCo in the past. This is due to the fact that the thresholds for a prohibition are high compared to other jurisdictions. SIEC Test Under the Draft Law In 2021, the Federal Council published a draft for an amendment of the Cartel Act. A public consultation procedure regarding the draft was completed in March 2022. In May 2023, the Federal Council submitted a reworked draft. The bill was finalised and approved by both chambers of Parliament in December 2025. The revised act will come into force no earlier than 2027. The main change with regard to the merger control regime concerns the replacement of the cur - rently applicable CSDP test by a “SIEC (significant impediment to effective competition) test”. The SIEC test would allow ComCo to prohibit a notified con - centration or authorise it subject to conditions and obligations if the investigation indicates that the fol - lowing criteria are met cumulatively: • the concentration significantly impedes effective competition, particularly by creating or strengthen - ing a dominant position; and • the concentration does not result in any efficiency gains for customers, which are substantiated by the notifying companies and verifiable, and which result specifically from the concentration and offset the disadvantages of the significant impediment to competition.
It is expected that the introduction of the SIEC test regime will lead to more Phase II proceedings. Fur - thermore, it might also lead to more interventions by ComCo, as the threshold will be lower than it is under the current test regime. All notifications submitted after the revised Cartel Act comes into force will be assessed based on the SIEC test. Exemption The revised Cartel Act further provides, among other things, for an exemption from the obligation to notify a concentration if: • all product markets affected by the concentration are to be defined geographically in such a way that they cover Switzerland and at least the EEA; and • the concentration is assessed by the EC. However, there are no changes to the notification thresholds in the draft law. 6.3 Remedies and Commitments A proposed concentration may also be cleared by ComCo subject to certain conditions or obligations only. However, the law does not specify the types of conditions or obligations that may be ordered by ComCo. In practice, remedies will generally be dis - cussed between ComCo and the undertakings con - cerned. In the past, structural and behavioural rem - edies have both been imposed. 6.4 Antitrust/Competition Enforcement In exceptional cases, a concentration that has been prohibited by ComCo may be authorised by the Feder - al Council at the request of the undertakings involved, if this is necessary for compelling public interest rea - sons. However, there appears to be no evidence of such request being submitted to date. Appeal The decisions of ComCo in merger control cases are subject to appeal to the Federal Administrative Court. The respective judgments of the Federal Admin - istrative Court are subject to appeal to the Federal Supreme Court, which can review such judgments with regard to their conformity with the law but is bound by the facts established before the Federal Administrative Court unless they are manifestly incor -
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