SWITZERLAND Law and Practice Contributed by: Marco Toni, Gilles Pitschen, Leonard Baumann and Lara Pafumi, Loyens & Loeff
9.2 Technology Company Due Diligence Publicly listed companies are allowed to provide due diligence information as long as the provision of such information is in the best interest of the company and complies with applicable law and contractual obliga- tions – in particular, with insider trading rules, ad hoc disclosure obligations, confidentiality undertakings, data privacy obligations and the principle of equal treatment of shareholders. The permissibility of any disclosure of due diligence information must be ana- lysed on a case-by-case basis in relation to the spe- cific information and bidder, as well as the intended transaction and its implications for the company. Before any confidential information is disclosed, the company should ensure that the bidder has entered into appropriate non-disclosure undertakings and that the due diligence information is only disclosed on a limited and need-to-know basis. Information that is sensible from a commercial or antitrust perspective should be disclosed to clean teams only. The company has no general obligation to provide due diligence information to potential or actual bidders. However, if a company has provided or will provide due diligence information to actual or potential bid- ders, all actual (but not other potential) bidders have a right to receive the same information. The level of technology due diligence depends on the specific IP portfolio. Generally, a company may be allowed to disclose IP information that is already public in the relevant IP registers. However, particular attention should be paid in relation to trade secrets and other commercially valuable confidential informa- tion, including source codes. In technology compa- nies, such information is likely to qualify as insider information and therefore may not be disclosed in connection with a due diligence. 9.3 Data Privacy Any processing of personal data of Swiss data sub- jects must comply with the provisions of the Swiss Federal Data Protection Act (DPA). Generally, it is not- ed that – on the one hand ‒ the processing must be based on one or more of the legal bases provided for in the DPA. In the context of a due diligence exercise, the seller and the buyer usually may rely on the legal
to effective competition (SIEC) test, the antitrust test standard will be adapted to international practice. The introduction of the SIEC test allows for a lower threshold for regulatory intervention. Swiss merger control proceedings are expected to be more time- consuming and burdensome owing to the increased role of economic evidence. This could have an impact on the larger transactions in the technology sector. However, this revision is still subject to the approval of the Swiss Parliament. Furthermore, a new draft legislation to screen FDI in Switzerland was adopted by the Swiss Federal Coun- cil in December 2023 and is currently being deliber- ated in the Swiss Parliament. Specifically, it is debated whether FDI control on incoming cross-border invest- ments will also apply to private, non-state investors. Depending on the final scope of the new legislation, it could make investments in Switzerland – including the technology sector – less attractive. The new legisla- tion is not expected to come into force before 2026. Finally, it is worth noting that the EU AI Act entered into force on 1 August 2024. With its extraterritorial reach, similar to the GDPR, it also applies to Swiss companies whose AI systems are available in the EU or whose AI-generated output is used in the EU. Cur- rently, Swiss law does not specifically regulate AI. However, in February 2025, the Federal Council com- municated its decision to ratify the Council of Europe’s AI Convention and commissioned the Federal Depart- ment of Justice and Police (FDJP) to prepare a con- sultation draft for new regulations on the use of AI by the end of 2026. The legislative initiative is particu- larly intended to cover the topics of transparency, data protection, non-discrimination and regulatory supervi- sion. At the same time, the Federal Department of the Environment, Transport, Energy and Communications (DETEC) will propose additional non-legislative meas- ures by the end of 2026. These planned steps are intended to enable Switzerland to ratify the Council of Europe’s AI Convention. 9. Due Diligence/Data Privacy 9.1 Due Diligence Process No response has been provided in this jurisdiction.
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