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What form should merger control notification take in Switzerland and 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.
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