SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
2.4 Definition of “Control” “Control” is understood under Swiss merger control as the ability to exercise a decisive influ - ence over the activities of another undertaking by the acquisition of rights or shares or by any other means. It is irrelevant whether control is acquired directly or indirectly, de jure or de facto. The means of obtaining control may, in particu - lar, involve the acquisition of the following, either individually or in combination: • ownership rights or the right to use all or part of the assets of an undertaking; and/or • rights or agreements that confer a decisive influence on the composition, deliberations or decisions of the organs of an undertaking. In Switzerland, acquiring minority or other inter - ests that do not grant control is not subject to notification. However, such acquisitions can be reviewed as potentially anti-competitive agree - ments. ComCo states that an acquisition may be classified as an anti-competitive agreement if the parties involved intend to co-operate. 2.5 Jurisdictional Thresholds Swiss merger control, in the first instance, applies a turnover test. A concentration is noti - fiable if two turnover thresholds are cumulatively met: • in the financial year preceding the concentra - tion, 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 reported a turnover in Switzerland of at least CHF100 million. Compared to international standards, these turn - over thresholds are relatively high. The undertak -
ings concerned are the merging parties (in the case of a merger) or the acquiring and acquired undertaking, that is, excluding the seller (in the case of an acquisition of control). In addition, notification of a concentration is man - datory – irrespective of the turnover achieved – if one of the undertakings concerned (acquirer and target, but excluding the seller) has, in a final and non-appealable decision, been held to be dominant in a market in Switzerland, and if the concentration concerns either that market, an adjacent market or a market upstream or down - stream thereof. For this threshold to be applica - ble, dominance must be determined in the bind - ing part of the decision – that is, the notification obligation is not triggered if an undertaking is only deemed to be dominant in the reasoning of a decision. 2.6 Calculations of Jurisdictional Thresholds Turnover is calculated on a consolidated basis (excluding intra-group sales). Turnover is geo - graphically allocated to the place where compe - tition for the relevant customer has taken place, which is normally the domicile of the customer. If the parties involved do not sell directly to customers in Switzerland but use Swiss billing addresses for invoicing transactions that occur outside the country, that revenue will not be con - sidered as generated in Switzerland. In the case of insurance companies, “turnover” is replaced by ”annual gross insurance premi - um income”, and in the case of banks and other financial intermediaries, it is replaced by “gross income”. Sales booked in a foreign currency will be con - verted into Swiss francs in accordance with gen - erally accepted accounting principles applicable
563 CHAMBERS.COM
Powered by FlippingBook