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Trends and climate
How would you describe the current merger control climate, including any trends in particular industry sectors?
In a few recent cases (local.ch/search.ch, Tamedia/Ricardo, JobCloud/JobScout24 and Swisscom/SSR/Ringier) the Competition Commission (ComCo) cleared concentrations that partly led to high market share overlaps and created dominant positions. However, ComCo argued that the concentrations would not eliminate effective competition. Regardless, ComCo’s actions should not be interpreted a trend towards a more lenient merger control regime.
Are there are any proposals to reform or amend the existing merger control regime?
Legislation, triggers and thresholds
Legislation and authority
What legislation applies to the control of mergers?
The legislation governing the control of mergers is the Act on Cartels (mainly Articles 4(3), 9, 10 and 32 to 38) and the Merger Control Ordinance).
What is the relevant authority?
The secretariat of the Competition Commission (ComCo) conducts the investigation. Based on the secretariat’s proposal, ComCo respectively the presidium of ComCo will decide whether to clear or prohibit a transaction.
The notification must be filed with the secretariat, which is the general point of contact for the parties.
Transactions caught and thresholds
Under what circumstances is a transaction caught by the legislation?
A transaction is caught by the legislation if it constitutes a concentration (ie, an acquisition of control or a merger between previously independent undertakings).
‘Control’ is the ability to exercise decisive influence on the activities of the other undertaking through the acquisition of participation rights or any other means. The means by which control can be acquired include, either separately or in combination:
- ownership or the right to use all or part of the assets of the undertaking; and
- rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
Acquisitions of minority or other interests are caught only if they lead to control. Such control may be de facto (eg, because of low attendance at shareholders’ meetings in listed companies) or be based on contractual or other veto rights that enable the holder to block strategic decisions.
The concepts of ‘concentration’, ‘acquisition of control’ and ‘merger’ are the same as those under the EU Merger Control Regulation (139/2004).
Do thresholds apply to determine when a transaction is caught by the legislation?
There are two thresholds: a turnover threshold and a dominance threshold.
Under the turnover threshold, a concentration must be notified to the secretariat if, in the business year before signing, each of at least two of the undertakings concerned generated Sfr100 million turnover in Switzerland and all of the undertakings concerned combined generated a combined turnover of Sfr2 billion worldwide or Sfr500 million in Switzerland. The concept of ‘undertakings concerned’, as well as the rules governing the turnover calculation, are essentially the same as those under the EU Merger Control Regulation (139/2004). Foreign currencies are to be converted into Swiss francs at the annual average rate published by the Swiss National Bank.
Transactions that do not meet the turnover thresholds must be notified if:
- one of the undertakings concerned has been held to be dominant in a market in Switzerland in in a final and non-appealable decision under the Act on Cartels; and
- the concentration concerns that market, an adjacent market or an upstream or downstream market.
Such decision must have been issued by the Competition Commission (ComCo). Arguably, a civil court judgment does not trigger the dominance threshold. A considerable part of the notifications made to the secretariat are filed based on the dominance threshold (particularly in the media and telecoms sectors). In one case, ComCo and the parties to a transaction agreed a remedy that included a duty to notify transactions for a limited period of time after closing.
While on its own, the fact that an undertaking is dominant does not trigger a filing duty when there is no formal and enforceable dominance ComCo decision, ComCo and the secretariat have indicated that they have the power to investigate a non-reportable transaction based on the abuse of dominance provisions (based on the Continental Candoctrine). However, to date, ComCo and the secretariat have not used this possibility. In addition, it is highly questionable whether ComCo and its secretariat have in fact the power to investigate non-reportable concentrations.
Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?
It is possible to seek informal guidance from the secretariat on a potential transaction from either a jurisdictional or a substantive perspective. However, informal guidance on substantive issues is rarely used since the secretariat will give only vague guidance which is subject to disclaimers that render it unreliable.
Are foreign-to-foreign mergers caught by the regime? Is a ‘local impact’ test applicable under the legislation?
There is no such thing as a local impact test. A local impact is assumed if either the turnover or the dominance threshold is met.
For the turnover threshold, an exception exists if two or more undertakings acquire joint control over a joint venture that has neither activities nor turnover in Switzerland and if such activities and turnover in Switzerland of the joint venture are neither planned nor expected in future.
What types of joint venture are caught by the legislation?
Joint ventures are subject to merger control if:
- two or more undertakings acquire joint control of one undertaking previously not controlled by them; and
- the joint venture performs on an ongoing basis all of the functions of an autonomous economic entity.
The principles are the same as those under the EU Merger Control Regulation (139/2004).
Process and timing
Is the notification process voluntary or mandatory?
The notification process is mandatory. There are no exceptions.
What timing requirements apply when filing a notification?
The notification can be filed at any time before closing; there is no deadline for filing. However, clearance must be obtained to close the transaction.
Filing before signing is possible if the undertakings concerned demonstrate a good-faith intention to conclude an agreement. Analogous considerations apply in the case of a public bid.
What form should the notification take? What content is required?
The Competition Commission has published a form that elaborates on the information to be included in the notification (www.weko.admin.ch/dam/weko/de/dokumente/2015/08/merkblatt_und_formularzusammenschlussvorhaben.pdf.download.pdf/merkblatt_und_formularzusammenschlussvorhaben.pdf). The notification must include the following information:
- the names, domiciles and a brief descriptions of the business activities of the affiliated undertakings and the seller;
- a description of the proposed concentration, the relevant facts and circumstances and the purposes to be achieved through the proposed concentration;
- the worldwide and Swiss turnover of each undertaking;
- a description of all product and geographic markets in which the parties are active and that relate to the transaction – in particular, a description of all affected markets (ie, markets where two or more of the undertakings concerned will hold a combined market share in Switzerland of 20% or more or where one of the undertakings concerned holds a market share in Switzerland of 30% or more). In theory, the 30% threshold includes not only vertically related markets, but all markets in which one of the parties has a market share of at least 30%. However, in practice, it is usually possible to obtain a waiver for markets where one party has a market share of at least 30% and there is no vertical relationship between the undertakings concerned in relation to that market;
- with regard to the markets referred to above, a description of the structure of distribution and demand, the market shares held by the undertakings for the past three years and those held by each of the three main competitors; and
- with regard to the markets referred to above, the undertakings that have entered the market during the past five years as well as the undertakings which may enter these markets within the next three years and, if available, the costs associated with such entry on the market.
The following documents must be filed:
- the transaction documents (eg, the share purchase agreement);
- the annual reports of the undertakings;
- documents prepared for an officer or director discussing the competitive effect of the transaction; and
- a power of attorney.
These documents can be filed in English, German, French or Italian. There are no specific requirements for submission of documents (eg, apostillisation or notarisation). Copies are sufficient.
The filing can be submitted only in German, French or Italian (not English).
In addition, where the transaction must also be notified to the European Commission, the secretariat requires the parties to file the Form CO and indicate the names of the case handlers from the European Commission.
Is there a pre-notification process before formal notification, and if so, what does this involve?
Yes. The parties can submit a draft notification for review by the secretariat. The secretariat will review the draft notification within one to two weeks and notify the parties of any additional information it needs.
Can a merger be implemented before clearance is obtained?
No, unless the Competition Commission (ComCo) has given permission to implement the transaction before clearance. There is an important difference between the EU Merger Control Regulation (139/2004) and Swiss merger control regime regarding the implementation of public bids. While under the regulation a public bid which has been notified may be implemented provided that the acquirer does not exercise the voting rights attached to the securities in question, in contrast, under the Swiss merger control regime, the acquisition of the shares itself constitutes an implementation, regardless of whether the voting rights attached to the respective securities are exercised.
As mentioned ComCo can grant permission for early implementation of a transaction for valid reasons. Such valid reasons were deemed to exist where a delayed closing would have created financial difficulties for the target or in case of a public bid.
Guidance from authorities
What guidance is available from the authorities?
As mentioned it is possible to seek informal guidance from the secretariat on a potential transaction from either a jurisdictional or a substantive perspective. However, informal guidance on substantive issues is rarely used since the secretariat will give only vague guidance which is subject to disclaimers that render it unreliable.
The parties can also use the pre-notification procedure to learn whether their notification is complete. The parties are advised to use the pre-notification procedure. Filing a notification without pre-notification will usually prompt the secretariat to declare the notification incomplete.
The Competition Commission has published a form setting out the required content of a notification (www.weko.admin.ch/dam/weko/de/dokumente/2015/08/merkblatt_und_formularzusammenschlussvorhaben.pdf.download.pdf/merkblatt_und_formularzusammenschlussvorhaben.pdf) and a notice indicating some recent developments in ComCo's practice (www.weko.admin.ch/dam/weko/de/dokumente/2014/09/praxis_zur_meldungundbeurteilungvonzusammenschluessen.pdf.download.pdf/praxis_zur_meldungundbeurteilungvonzusammenschluessen.pdf).
What fees are payable to the authority for filing a notification?
There is a set fee of Sfr5,000 for Phase I proceedings (which includes the pre-notification procedure). If a Phase II proceeding is opened, fees will be calculated on the basis of the time spent by the secretariat on the case (Sfr100 to Sfr400 per hour, depending on the seniority of the staff involved and the priority of the case). Fees in Phase II proceedings can reach Sfr100,000 or more.
Publicity and confidentiality
What provisions apply regarding publicity and confidentiality?
Unlike in other jurisdictions, the initiation of Phase I proceedings is not made public in Switzerland. However, the initiation of Phase II proceedings is made public in both the Official Journal and a press release. In addition, the secretariat will publish a redacted version of its decision either to clear or prohibit a concentration. Exceptionally, the Competition Commission (ComCo) will also publish a press release when it clears a concentration in Phase I (eg, if the transaction has attracted widespread public attention). In case of a Phase II decision, a press release is usually published in any case.
The secretariat and ComCo are bound by professional secrecy. Publications of the secretariat and ComCo must not include business secrets. The secretariat and ComCo have a good track record of keeping transactions confidential (eg, public bids that have not yet been announced).
Are there any penalties for failing to notify a merger?
If a reportable concentration is implemented without prior clearance, a fine of up to Sfr1 million can be imposed. The fine is usually (but not necessarily only) imposed on the undertaking acquiring control (ie, not on the target). In case of a merger, the fine will be imposed on the parties to the merger.
In addition, individuals implementing a reportable concentration without prior clearance are subject to a fine of up to Sfr20,000.
Further, the implementation of a reportable concentration before clearance is void.
Procedure and test
Procedure and timetable
What procedures are followed by the authority? What is the timetable for the merger investigation?
The notification process usually starts with the pre-notification process, which parties are advised to use. Filing a notification without pre-notification will usually prompt the secretariat to declare the notification incomplete.
Filing the complete notification triggers Phase I, which takes one month. Phase I starts the day after the complete notification has been filed. If the transaction is also filed in the European Union, the secretariat expects the parties to file the Swiss notification after EU Form CO has been filed so that the EU Phase I ends one or two days before the end of the Swiss Phase I. This is intended to give the secretariat the opportunity to discuss the case with the European Commission in order to prevent a materially different Swiss decision.
If there are indications that the concentration would create or strengthen a dominant position, a Phase II investigation is initiated. This takes four months. Phase II can be extended if the parties fail to gather information requested by the secretariat. Alternatively, the parties may ask the secretariat to extend Phase II.
What obligations are imposed on the parties during the process?
The parties cannot complete a concentration before clearance unless completion has been approved by the Competition Commission.
In addition, if material facts change after the notification, the parties must notify the secretariat promptly and unsolicited.
What role can third parties play in the process?
Third parties have no party rights: they have no access to the file and cannot appeal a Competition Commission decision clearing a concentration.
However, third parties can make unsolicited submissions explaining why they think that the concentration will create competitive problems. In cases where the secretariat thinks that the transaction might create competitive issues, the secretariat also sends questionnaires to third parties (eg, competitors or customers) for comments on certain aspects of the transaction. For example, third parties may be asked to state whether a market definition proposed by the parties to the transaction is correct and what they think the consequences of the notified transaction will be. Third parties may also request a meeting with the secretariat, but whether such meeting is held is at the secretariat’s discretion.
What is the substantive test applied by the authority?
The Competition Commission (ComCo) applies a ‘dominance-plus’ test. A concentration can be prohibited only if:
- the concentration would create or strengthen a dominant position that could eliminate effective competition; and
- the concentration would not improve the competitive conditions in another market to an extent that would outweigh the harm caused by the dominant position.
In general, this sets a high bar for a prohibition or remedies decision. However, in some instances, ComCo has prohibited transactions that did not meet this high threshold. One example is the prohibition of the Orange/Sunrise concentration. This concentration was prohibited based on the grounds of collective dominance. However, in essence, ComCo's concern was that of a unilateral effects case. In addition, in other cases ComCo has required conditions and obligations from the parties where it had competitive concerns which did not achieve the prerequisites of the dominance test.
In practice, ComCo will prohibit a transaction or request remedies if the transaction would:
- lead to horizontal overlaps creating single or collective dominance or unilateral effects;
- create vertical foreclosure effects; or
- create conglomerate or portfolio effects.
Does the legislation allow carve-out agreements in order to avoid delaying the global closing?
In theory, it may be possible to carve out (ie, hold separate) businesses or assets in other jurisdictions in order to enable a global closing. In practical terms, such a carve-out would be likely to require a derogation from the suspension requirement.
Test for joint ventures
Is a special substantive test applied for joint ventures?
What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.
The Competition Commission (ComCo) can clear a concentration, prohibit it or clear it with conditions and/or obligations. Technically, only decisions prohibiting the transaction or clearing it with conditions and/or obligations are issued as formal decisions; while decisions permitting a transaction are issued as notices.
If ComCo feels that the transaction would create competitive issues, it will ask the parties to propose remedies. Regarding procedure, there is no standardised procedure for negotiating remedies. Parties can begin negotiating remedies during the pre-notification procedure. It is also possible to negotiate remedies in Phase I, although this is rare, except in cases where remedies have agreed in the parallel proceedings before the European Commission in Phase I and the secretariat has required the parties to commit to the same remedies in regard to Switzerland. In purely domestic transactions, remedies often are negotiated after the parties received the statement of objections of the secretariat in Phase II.
Regarding the substance of remedies, ComCo prefers structural to behavioural remedies. However, there have been numerous cases where ComCo has accepted behavioural remedies.
In cases that have been filed in multiple jurisdictions and where remedies have been imposed by a foreign competition authority, ComCo has often requested a commitment from the parties to adhere to these remedies in case of similar competitive issues in Switzerland.
Right of appeal
Is there a right of appeal?
Yes, but only the undertakings concerned can appeal the decision. Arguably, only decisions prohibiting the transaction or clearing it with conditions can be appealed. In case of a clearance decision, the prevailing view is that a clearance decision without conditions cannot be appealed.
Do third parties have a right of appeal?
What is the time limit for any appeal?
The appeal time limit is 30 days following receipt of the Competition Commission’s reasoned decision.