SWITZERLAND Law and Practice Contributed by: Beda Kaufmann, Alexander von Jeinsen, Daniel Raun and Laurent Riedweg, Advestra
rect or it is determined they are in violation of the law. The right of appeal is not available to any third parties. Unauthorised Implementation Where a notifiable concentration is implemented with - out prior notification, ComCo will start the merger con - trol proceedings ex officio. Additionally, the undertak - ing that was obliged to notify may be fined up to CHF1 million and the responsible person(s) may be person - ally fined up to CHF20,000. The legal effect of any act of implementation that has already been carried out is temporarily suspended and becomes null and void if the merger ends up being prohibited by ComCo. If a prohibited concentration has been implemented – or if a concentration is prohibited after its implementation – and exceptional authorisation for the concentration has not been requested or granted, the undertakings concerned are required to take the necessary steps to restore effective competition. 7. Foreign Investment/National Security 7.1 Applicable Regulator and Process Overview Switzerland has traditionally been a liberal economy open to foreign investment and there is currently no general FDI control regime under Swiss law. Invest - ment controls only apply in a limited number of sec - tors, particularly for investments in the financial sector and residential real estate. In other sectors, specific additional licensing requirements apply for foreign investors, including in aviation, telecommunications, nuclear energy and radio/television. Following a parliamentary motion regarding the intro - duction of an investment control regime, the Federal Council in 2022 conducted a consultation on the basis of a preliminary draft of the Federal Act on the Control of Foreign Investments (the “Federal Investment Con - trol Act (FICA)”). However, throughout the legislative process the Federal Council was opposed to the idea of introducing more stringent investment controls in Switzerland. The results from the consultation in large parts mirrored the Federal Council’s reluctance. In December 2023, the Federal Council published a dis - patch and draft bill of the FICA, taking into account the
feedback received during the consultation and signifi - cantly reducing the scope of the proposed legislation. Following lengthy parliamentary deliberation, both chambers of the Swiss Parliament, the National Coun - cil and the Council of States, approved the final FICA. Notification Duty FICA’s stated purpose is to prevent takeovers that would endanger public order or security. It provides for a notification duty for acquisitions of enterprises in critical sectors or industries (eg, energy and water supply, and suppliers in the defence industry) by for - eign investors under direct or indirect government control. For targets in the most critical sectors (such as armament, electricity and water supply), FICA pro - vides for alternative de minimis thresholds of 50 full- time equivalents (FTE) on average or CHF10 million of revenue. The acquisition of a target that does not reach either threshold during the two preceding busi - ness years would not be subject to approval under the FICA. Other sectors are subject to a higher thresh - old of CHF100 million in annual turnover (eg, certain hospitals, central transportation hubs, suppliers in the medical industry, and systemically important financial market infrastructures and banks). Review Procedure Notification under the FICA would need to be made to the State Secretariat for Economic Affairs (SECO) prior to the completion of the takeover and, pend - ing approval, the transaction may not be executed. The FICA provides for a two-stage review procedure, similar to the Swiss merger control regime (see 6. Antitrust/Competition ). Jointly with other interested government units, SECO may approve the transaction directly within one month of the notification or – if an in-depth examination is required – within three months of the initiation of the second phase. If SECO or one of the other government units involved opposes the transaction, or if a transaction subject to review is of considerable political significance, the Federal Coun - cil is the deciding body. 7.2 Criteria for National Security Review The criteria and considerations of SECO do not vary depending on the nature of the investor or transac - tion. They include whether the investor has engaged in
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