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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 inform the parties whether it needs any additional information.
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 EU Merger Control Regulation (139/2004), 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 (https://www.weko.admin.ch/dam/weko/de/dokumente/2014/09/v3.1_Praxis_zur_Meldung_und_Beurteilung_von_Zusammenschl%C3%BCssen_(15.6.16,_redaktionelle_%C3%9Cberarbeitungen).pdf.download.pdf/Praxis%20zur%20Meldung%20und%20Beurteilung%20von%20Zusammenschl%C3%BCssen%20.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. 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.
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