SWITZERLAND Law and Practice Contributed by: Marcel Dietrich, Richard Stäuber and Katharina Bratvogel, Homburger
8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review Decisions of ComCo in merger control cases are subject to an appeal to the Federal Administra - tive Court. The Federal Administrative Court has full jurisdiction to review ComCo’s findings of fact, legal assessment and sanctions or penal - ties under all aspects of fact and law. The judgment of the Federal Administrative Court may be appealed to the Federal Supreme Court. The Federal Supreme Court can review the judgment only with respect to its conformity with the law. It is bound by the facts that have been established before the Federal Administra- tive Court unless they are manifestly incorrect or have been determined in violation of legal provi - sions. 8.2 Typical Timeline for Appeals An appeal to the Federal Administrative Court needs to be filed within 30 days of formal notifi - cation of ComCo’s decision. The duration of the appeals proceeding varies but regularly amounts to significantly more than a year. An appeal to the Federal Supreme Court must be filed within 30 days of receiving the formal noti - fication of the judgment of the Federal Admin - istrative Court. The duration of the proceedings regularly amounts to a year or more. 8.3 Ability of Third Parties to Appeal Clearance Decisions Third parties cannot appeal a clearance deci - sion.
7.3 Confidentiality The fact that a notification is submitted is not made public. Conversely, the decision to open an investigation proceeding (Phase II) and the final decision of ComCo authorising or prohibit - ing a concentration are published in the Official Federal Gazette and in the Swiss Official Gazette of Commerce. Further, ComCo regularly publish - es the reasoning for its merger decisions in its quarterly journal. The undertakings concerned may specify what information they consider to be business secrets and request that ComCo keep such information confidential. In the event of a difference of opin - ion on whether certain information constitutes a business secret, ComCo will issue an appealable order. 7.4 Co-Operation With Other Jurisdictions The agreement between the EU and Switzerland concerning co-operation on the application of their competition law provides a framework for co-operation between ComCo and the Euro - pean Commission. By virtue of this agreement, information may, under limited circumstances, be shared with the other authority without the consent of the undertakings concerned (second- generation agreement). In such a case, ComCo must notify the undertaking concerned and invite it to express its views before transmitting the data to the European Commission. Regarding other authorities, such an exchange of information is only possible with the consent of the parties. Typically, ComCo will then request a waiver letter from the undertakings concerned.
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