SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
• the acquisition of joint control over an exist - ing joint venture constitutes a concentration if the joint venture performs all the functions of an autonomous economic entity on a lasting basis; • the creation of a new joint venture constitutes a concentration if the joint venture performs all the functions of an autonomous economic entity on a lasting basis and if the business activities of at least one of the controlling undertakings are transferred to the joint ven - ture; and • the acquisition of joint control over an existing undertaking constitutes a concentration. 2.11 Power of Authorities to Investigate a Transaction If the jurisdictional thresholds are not met, ComCo does not have the power to investigate a transaction or impose any corrective measures if a transaction creates or strengthens a domi - nant position that is liable to eliminate effective competition. 2.12 Requirement for Clearance Before Implementation Implementation of a transaction must be sus - pended prior to clearance. 2.13 Penalties for the Implementation of a Transaction Before Clearance If a notifiable transaction is implemented before clearance, the undertakings concerned may be fined up to CHF1 million. The responsible individual(s) may, in addition, be fined up to CHF20,000. These fines are made public. Fines have also been imposed in cases involving for - eign-to-foreign transactions. 2.14 Exceptions to Suspensive Effect The parties may request ComCo to authorise the implementation of the concentration prior
to the review period. The parties must demon - strate good cause for such implementation, as the concentration might not otherwise be imple - mented, or third parties might suffer significant harm if the implementation was suspended dur - ing the review period. Special rules apply to concentrations of banks that are deemed necessary for reasons of credi - tor protection. Such concentrations are reviewed by FINMA, which may allow implementation at any stage of the proceedings. The takeover of CS by UBS by way of an absorption merger within the meaning of Article 3 (1)(a) and Arti - cle 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 has been decisive for the assessment of admissibility and FINMA has assumed jurisdiction. There are no specific rules for public takeover bids. ComCo should be contacted in advance in case of such bids to allow for co-ordination of their proceedings with those of the compe - tent takeover board. It is also possible to request authorisation prior to the expiry of the review period in such cases or to propose arrange - ments on voting rights (see 2.15 Circumstanc- es Where Implementation Before Clearance Is Permitted ). 2.15 Circumstances Where Implementation Before Clearance Is Permitted A carve-out of affected businesses or assets to allow for the closing of a global transaction before receipt of clearance in Switzerland does not appear to have been accepted by ComCo so far. In particular, in the case of takeover bids, ComCo has, in practice, accepted arrangements
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