SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
parties to commit to divest certain assets “as early as possible”. If remedies are not fully complied with, ComCo may impose sanctions of up to CHF1 million or, in the case of repeated non-compliance, an amount of up to 10% of the overall turnover of all undertakings involved in Switzerland. 5.6 Issuance of Decisions At the end of Phase I proceedings (preliminary investigation), ComCo may issue an order to clear the transaction if conditions and obliga - tions are imposed. Without remedies, ComCo does not regularly issue a formal order at the end of Phase I but provides the parties with a com - fort letter clearing the transaction. ComCo can - not prohibit the transaction at the end of Phase I. At the end of Phase II proceedings (in-depth investigation), a formal decision is ordered to clear (potentially subject to conditions and/or obligations) or prohibit the concentration. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions In 2017, ComCo issued a prohibition decision (one of only five prohibitions since 1996) regard - ing the proposed concentration of Ticketcorner and Starticket. There has not been a clearance subject to conditions and/or obligations recently. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications ComCo only considers ancillary restraints to the extent they are directly related to and necessary for the concentration. Whether these conditions are imposed is assessed according to criteria
comparable to those applicable under EU com - petition law, as set out in the European Commis - sion’s Notice on Ancillary Restraints. However, ancillary restraints that qualify under these criteria are not automatically covered by the transaction clearance but only upon spe - cific request. ComCo expects the notifying undertaking(s) to specifically describe the ancil - lary restraints and provide an assessment in the notification as to why they qualify as directly related and necessary to the concentration. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The Secretariat regularly sends questionnaires to third parties, including customers and com - petitors, to solicit their opinions on a planned concentration and to gain a better understand - ing of market conditions and the competitive environment. These third parties do not have any formal procedural rights. ComCo is neither obliged to send out questionnaires nor to con - sider the replies received. Third parties also do not have legal standing to appeal merger decisions. 7.2 Contacting Third Parties The Secretariat regularly contacts third parties as part of its review process by sending out questionnaires. Where remedies are offered, the Secretariat may obtain the assessment of such remedies by market participants (ie, market testing).
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