SWITZERLAND Law and Practice Contributed by: Marco Toni, Gilles Pitschen and Leonard Baumann, Loyens & Loeff
ures. Employees are also granted the right to reject the transfer of their individual employment relationship – in which case, the employment would be terminated. However, employees or the employees’ representative body (if any) do not have a binding vote on the transaction itself. 7.7 Currency Control/Central Bank Approval There is no currency control regulation or approval by the Swiss National Bank for M&A transactions. 8. Recent Legal Developments 8.1 Significant Court Decisions or Legal Developments There are a number of legislative reforms that (could) have an impact on technology M&A transactions in Switzerland. Some are already in force, while others are still being debated in the legislative process. On 1 August 2021, Switzerland was one of the first countries in the world to introduce legis- lation on distributed ledger technology. Such legislation includes civil law but also regulatory provisions with the aim of enabling the use of distributed ledger technologies in a trusted envi- ronment. As part of the Swiss corporate law reform, which came into force on 1 January 2023, new legal provisions have been introduced that provide opportunities for flexible structuring of M&A transactions. Specifically, interim dividends are now explicitly permitted under Swiss law. They make it possible to avoid “cash for cash” pay- ments so that the liquidity management after the acquisition can be improved. Additionally, a capital fluctuation band can now be introduced,
allowing the board of directors to increase or reduce capital within a certain range. This ena- bles the board of directors to issue shares as acquisition currency. Additionally, the revised Swiss data protection law came into force on 1 September 2023. One of the main goals of the new law was to achieve the compatibility with EU law (GDPR). Data pro- tection in general becomes more important, especially in technology M&A deals involving large databases. The compliance of the target company with the newly introduced law should be observed and also the data disclosure dur- ing the transaction process should take the new data protection law into consideration. The Swiss Cartel Act is currently being revised. The Swiss Federal Council adopted a dispatch on the partial revision of the Swiss Cartel Act that is currently in deliberation in the Swiss parliament. The core element of this revision is the modernisation of Swiss merger control. By changing from the current qualified market dominance test to the Significant Impediment 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 evi- dence. 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 has been adopted by the Swiss Federal Council in December 2023 and is currently being deliberated in the Swiss Par- liament. Specifically, it is debated whether FDI
359 CHAMBERS.COM
Powered by FlippingBook