SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
in Switzerland. In practice, the average yearly exchange rates published by the Federal Tax Administration are regularly used to convert for - eign currencies. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The turnover of an undertaking comprises the turnover of the entire group – that is, the turno - ver of its subsidiaries, parent companies, sister companies and joint venture companies, but excluding intra-group sales. The seller’s turnover does not need to be included with that of the tar - get. The turnover of a joint venture that is jointly controlled by undertakings will be apportioned among those undertakings in equal parts (again, excluding any intra-group sales). Changes in the business during the reference period are reflected in a manner similar to that under EU competition law. The turnover of a business divested in the financial year preced - ing the concentration must be subtracted in full, and the turnover of acquired businesses must be added in full. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions in Switzerland are subject to merger control if the relevant thresholds are met. The Federal Supreme Court has determined that meeting these thresholds indicates sufficient local effects. Foreign joint ventures are an exception to this, however. The Secretariat has published a notice according to which it does not consider the establishment of a joint venture in Switzer - land notifiable (even if the joint venture’s parent companies meet the turnover thresholds) if the joint venture does not have any activities in Swit - zerland and such activities are neither planned
nor foreseeable. However, although this exemp - tion has been confirmed in recent cases, there has been a case (VW/Enel/JV, 2021) where the general rule did not apply. In this case, the tar - get company was to build charging stations for electric vehicles exclusively in Italy. ComCo assumed local effects regarding the target com - pany, arguing that the usability of electric vehi - cles in Switzerland would be limited if they could not be charged in Italy, as many Swiss travel there for holidays. However, this case was very fact-specific and particular, and the conclusion might be drawn that the exemption for foreign joint ventures is not generally affected. 2.9 Market Share Jurisdictional Threshold Jurisdictional thresholds in Switzerland are, ini - tially, based on turnover. The additional notifica - tion obligation based on one party’s confirmed dominance (see 2.5 Jurisdictional Thresholds ) requires that the concentration concerns either: • that market; • an adjacent market; or • a market upstream or downstream thereof. Therefore, the confirmed dominance of one par - ty is in itself not sufficient to trigger a notification obligation. Conversely, it is not required that there be a sub- stantive overlap in the market where one party is dominant for this threshold to be met; however, it is sufficient that the transaction has a competi - tive relationship with such a market. 2.10 Joint Ventures Three types of joint ventures are subject to merger control:
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