SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
2. Jurisdiction 2.1 Notification
eign Direct Investment/Subsidies Review for more details. 1.3 Enforcement Authorities Swiss merger control law is enforced by Com - Co and the Secretariat. ComCo serves as the decision-making body and consists of 11 to 15 members (currently 12), whom the Federal Council elects. The Secretariat conducts inves - tigations, prepares the decisions of ComCo and, together with one member of the presiding body of ComCo, issues the necessary procedural rul - ings. The total headcount of the Secretariat at the end of 2021 (the most recent report available) amounted to 76 employees (65.2 FTE). The Sec - retariat is divided into four departments, each responsible for product markets, services, infra - structure, and construction; a fifth department, Resources, provides administrative and techni - cal support within the Secretariat. In the banking sector, the Swiss Financial Market Supervisory Authority (FINMA) may intervene if it considers that the concentration risks impair the interests of creditors. In such a case, the FINMA takes the place of ComCo, which it will invite to submit an opinion. The takeover of CS by UBS by way of an absorption merger within the meaning of Article 3 (1)(a) and Article 4 (1) (a) of the Merger Act was subject to the review competence of FINMA as a merger within the meaning of Article 4 (3)(a) CartA because the protection of creditor interests was decisive for the assessment of admissibility and FINMA had assumed jurisdiction.
Notification is compulsory if the relevant turno - ver thresholds are exceeded or if the undertaking concerned has been held to be dominant in a relevant market in a final and binding decision (see 2.5 Jurisdictional Thresholds ). There are no exceptions to this regime. 2.2 Failure to Notify If a notifiable concentration is implemented without prior notification, the undertaking that was obliged to notify may be fined up to CHF1 million. In such a case, ComCo may investigate the concentration ex officio and impose any necessary remedies. Additionally, the responsi - ble individual(s) may be fined up to CHF20,000 each. There have been several instances where com - panies have been fined for failing to notify. These fines are publicly disclosed, and to date, no indi - viduals have faced them. If a notifiable concentration is not notified, its legal effect under civil law is suspended (ie, the closing is null and void). 2.3 Types of Transactions The following transactions constitute concentra - tions subject to merger control: • the merger of two or more previously inde - pendent undertakings; and • any transaction, but in particular the acquisi - tion of an equity interest or the conclusion of an agreement, by which one or more under - takings acquire direct or indirect control of one or more previously independent under - takings or parts thereof.
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