SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
the EAER. See 9. Foreign Direct Investment/ Subsidies Review for more details. 4.7 Special Consideration for Joint Ventures No specific rules apply to joint ventures, which are also assessed under the dominance-plus test (see 4.1 Substantive Test ). 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions ComCo may prohibit or interfere with a trans - action only if the conditions of the dominance- plus test are met (see 4.1 Substantive Test ). If the companies do not comply with a prohibition decision, ComCo may take all the necessary steps to restore effective competition. In par - ticular, ComCo may order the separation of any combined undertakings or the cessation of the controlling influence. Additionally, ComCo may impose a fine of up to CHF1 million on compa - nies that fail to comply with a prohibition deci - sion. 5.2 Parties’ Ability to Negotiate Remedies A concentration may be cleared subject to cer - tain conditions or obligations. The law does not specify the types of conditions or obligations that may be ordered. In practice, both dives - titures and certain behavioural remedies have been implemented, and the scope of these rem - edies is discussed by the parties with ComCo. Both behavioural and structural remedies have been used in practice, and the choice depends on the characteristics of the affected markets and the identified competition concerns. While
ComCo prefers structural undertakings (ie, divestitures), it has been shown to be more open to behavioural remedies than the European Commission. In the case of international transactions, it is par - ticularly important to co-ordinate the remedies offered with those offered by other competition authorities, in particular the European Commis - sion. Remedies ordered by ComCo can only take into account competition issues. 5.3 Legal Standard The law does not set a standard that remedies must meet to be deemed acceptable. 5.4 Negotiating Remedies With Authorities Other than in EU merger control proceed - ings, there are no procedural provisions under Swiss law regarding remedies, such as the tim - ing of their negotiations. The most appropriate moment to initiate remedy negotiations must be determined in each individual case. ComCo does not depend on the parties to pro - pose remedies; instead, it can order remedies on its own. However, in practice, the parties are closely involved in the development of potential remedies. 5.5 Conditions and Timing for Divestitures Swiss law distinguishes between conditions and obligations: conditions need to be fulfilled before the concentration is completed, whereas obliga - tions need to be implemented thereafter. In the latter case, according to the practice of ComCo, the remedy must be implemented within a speci - fied period – that is, it is not sufficient for the
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