SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
3.11 Accelerated Procedure Prior to the notification of a concentration, the undertakings concerned and the Secretariat may mutually agree on the details of the notification’s content. The Secretariat may grant exemptions from the obligation to submit specific informa - tion or documents. In practice, this is particularly relevant for foreign-to-foreign mergers with lim - ited impact on the Swiss market.
• Ticketcorner/Starticket (2017); and • Schweizerische Post/Quickmail Group (2024). Currently, plans are underway to replace the dominance-plus test with the SIEC test (a sig - nificant impediment to effective competition), as it is applied in the EU. The Federal Council has published a draft for an amendment of the Cartel Act and conducted a public consultation proce - dure that lasted until March 2022. In March 2023, the Federal Council instructed the Department of Economic Affairs, Education, and Research to submit a dispatch on the partial revision of the Cartel Act, including the replacement of the dominance-plus test with the SIEC test, by the second quarter of 2023. On 24 May 2023, the Federal Council adopted the dispatch on the partial revision of the Swiss Cartel Act. The pro - posals for the modernisation of merger control remain essentially unchanged compared to the previous draft. The core element is the introduc - tion of the SIEC test and, thus, the alignment of the substantive test criteria for mergers with EU law. The proposal is currently under review and being discussed in parliament. 4.2 Markets Affected by a Transaction Markets are considered affected by the trans - action if either two or more of the undertakings concerned jointly hold a market share of 20% or more in Switzerland or the relevant geographic market or in which one of the undertakings con - cerned holds a market share of 30% or more in Switzerland or the relevant geographic market. 4.3 Reliance on Case Law ComCo regularly considers the practice of the European Commission, in particular with regard to market definitions. Furthermore, the case law in neighbouring countries of Switzerland will also be considered, more specifically, the practice of the German Federal Cartel Office.
4. Substance of the Review 4.1 Substantive Test
The substantive test is based on a dominance test supplemented by an additional test on the remaining degree of competition. According to this “dominance-plus test”, a concentration may only be prohibited if: • the transaction creates or strengthens a dominant position; • that dominant position is liable to eliminate effective competition in the relevant market; and • the transaction does not strengthen competi - tion in another market outweighing the nega - tive effects of the dominant position. Compared to other jurisdictions, this threshold is high. Given this high threshold, in the past 22 years (the current merger control system was introduced in 1996), only the following five merg - ers have been prohibited by ComCo: • Berner Zeitung/Thuner Tagblatt (1998, notifi - cation withdrawn prior to formal prohibition); • Berner Zeitung/20 Minuten (2004, subse - quently cleared upon appeal subject to obligations); • France Télécom/Sunrise Communications (2012);
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