Merger Control 2024 Comparisons

Swiss merger control is governed by the Federal Act on Cartels and other Restraints of Competition (the “Cartel Act” or CartA) and the Ordinance on the Control of Concentrations of Undertakings (the “Merger Control Ordinance” or MCO).

In addition, the Swiss Competition Commission (“ComCo”) and its Secretariat have published communications and guidelines on the application of the relevant merger control provisions.

There is currently no general foreign investment control regime in force in Switzerland. Special requirements apply in certain sectors where the conduct of business requires prior authorisation (in particular, in sectors that were formerly served by public monopolies), such as telecommunications, broadcasting and airline transport services. Furthermore, the acquisition of a real estate company (a company with the primary purpose of holding real estate) in Switzerland may require a permit from the competent cantonal authority under the Federal Act on the Acquisition of Real Estate by Foreign Persons. This legislative framework may change, however.

Foreign Investment Control Legislation

In March 2020, the Swiss parliament asked the Federal Council (Switzerland’s executive body) to propose foreign investment control legislation, aimed in particular at protecting Swiss expertise, employment, public order and safety. In August 2021, the Federal Council presented the key points of its proposal for Swiss investment control. Under the planned regime, the acquisition of control over Swiss companies by foreign investors will be subject to review in certain industries if the companies provide non-substitutable services or if state entities in security-relevant areas are critically dependent upon them.

A new Federal Act on FDI Control

Furthermore and regardless of the sector, review is envisaged for investments by foreign states or state-related actors. The Federal Council published the preliminary draft bill and opened the consultation process for a new Federal Act on Foreign Direct Investment Control in May 2022. In that draft, it was proposed to introduce a notification and approval requirement for certain takeovers of domestic undertakings by foreign investors (prior to closing) that endanger or threaten public order or security in Switzerland. Whereas the focus was on state-owned and state-related foreign investors (notification and approval requirement for all sectors, except of de minimis threshold), private foreign investors were also subject to the notification and approval requirement in particularly security-relevant sectors, partly if certain turnover-related thresholds were met.

Revised bill with limited scope

The consultation process for the new bill ended in September 2022. Then, on 10 May 2023, the Federal Council decided to substantially revise the proposal from the consultation. It announced the drafting of a heavily revised bill for the attention of parliament and instructed the Federal Department of Economic Affairs, Education and Research (EAER) to draw up a bill by the end of 2023 that was limited to the investments that are most critical for security. A limitation in scope was announced in the way that the investment review is to take effect when a foreign state-controlled investor takes over a domestic company that is active in a particularly critical area. See 9. Foreign Direct Investment/Subsidies Review for more details.

Swiss merger control law is enforced by ComCo and the Secretariat. ComCo consists of 11 to 15 members (currently 13), elected by the Federal Council, and is the decision-making body. The Secretariat conducts investigations, prepares the decisions of ComCo and, together with one member of the presiding body of ComCo, issues the necessary procedural rulings.

The total headcount of the Secretariat at the end of 2021 (the most recent report available) amounted to 76 employees (65.2 FTE). The Secretariat is split into four departments responsible for product markets, services, infrastructure and construction; a fifth department, resources, provides administrative and technical services within the Secretariat.

In the banking sector, the Swiss Financial Market Supervisory Authority (FINMA) may intervene if it considers that the concentration risks impair the interests of creditors. In such a case, the FINMA takes the place of ComCo, which it will invite to submit an opinion. The proposed takeover of CS by UBS by way of an absorption merger within the meaning of Article 3(1)(a) and Article 4(1)(a) of the Merger Act is subject to the review competence of FINMA as a merger within the meaning of Article 4(3)(a) CartA, because the protection of creditor interests is decisive for the assessment of admissibility and FINMA has assumed jurisdiction.

Notification is compulsory if the relevant turnover thresholds are exceeded or if the undertaking concerned has been held to be dominant in a relevant market in a final and binding decision (see 2.5 Jurisdictional Thresholds). There are no exceptions to this regime.

If a notifiable concentration is implemented without prior notification, the undertaking that was obliged to notify may be fined up to CHF1 million. In such a case, ComCo may investigate the concentration ex officio and impose any necessary remedies. In addition, the responsible individual(s) may be fined up to CHF20,000 each.

There have been several cases where undertakings have been fined for failure to notify. These fines are made public. So far, no individuals have been fined.

If a notifiable concentration is not notified, its legal effect under civil law is suspended (ie, the closing is null and void).

The following transactions constitute concentrations subject to merger control:

• the merger of two or more previously independent undertakings; and
• any transaction, but in particular the acquisition of an equity interest or the conclusion of an agreement, by which one or more undertakings acquire direct or indirect control of one or more previously independent undertakings or parts thereof.

“Control” is understood under Swiss merger control as the ability to exercise a decisive influence over the activities of another undertaking by the acquisition of rights or shares or by any other means. It is irrelevant whether control is acquired directly or indirectly, de jure or de facto. The means of obtaining control may in particular involve the acquisition of the following, either individually or in combination:

• ownership rights or the right to use all or part of the assets of an undertaking; and/or
• rights or agreements that confer a decisive influence on the composition, deliberations or decisions of the organs of an undertaking.

The acquisition of minority or other interests that do not confer control is not notifiable in Switzerland. However, such acquisition may be reviewed as a potentially anti-competitive agreement. According to ComCo, an acquisition may constitute an anti-competitive agreement if the parties intend to co-operate.

Swiss merger control in the first instance applies a turnover test. A concentration is notifiable if two turnover thresholds are cumulatively met:

• in the financial year preceding the concentration, the undertakings concerned together reported a turnover of at least CHF2 billion or a turnover in Switzerland of at least CHF500 million; and
• at least two of the undertakings concerned reported a turnover in Switzerland of at least CHF100 million.

Compared to international standards, these turnover thresholds are relatively high. The undertakings concerned are the merging parties (in the case of a merger) or the acquiring and acquired undertaking, that is, excluding the seller (in the case of an acquisition of control).

In addition, notification of a concentration is mandatory – irrespective of the turnover achieved – if one of the undertakings concerned (acquirer and target, but excluding the seller) has in a final and non-appealable decision been held to be dominant in a market in Switzerland, and if the concentration concerns either that market, an adjacent market or a market upstream or downstream thereof. For this threshold to be applicable, dominance needs to be determined in the binding part of the decision – that is, the notification obligation is not triggered if an undertaking is only held to be dominant in the reasoning of a decision.

Turnover is calculated on a consolidated basis (excluding intra-group sales). Turnover is geographically allocated in the place where competition for the relevant customer has taken place, which is normally the domicile of the customer. If the parties to the concentration make no sales to customers in Switzerland, but the invoicing for transactions taking place outside of Switzerland is carried out via billing addresses in Switzerland, such turnover is not considered to be achieved in Switzerland.

In the case of insurance companies, “turnover” is replaced by “annual gross insurance premium income”, and in the case of banks and other financial intermediaries by “gross income”.

Sales booked in a foreign currency will be converted into Swiss francs in accordance with generally accepted accounting principles applicable in Switzerland. In practice, the average yearly exchange rates published by the Federal Tax Administration are regularly used to convert foreign currencies.

The turnover of an undertaking comprises the turnover of the entire group – that is, the turnover of its subsidiaries, parent companies, sister companies and joint venture companies, but excluding intra-group sales. The seller’s turnover need not be included with that of the target. The turnover of a joint venture that is jointly controlled by undertakings will be apportioned among those undertakings in equal parts (again, excluding any intra-group sales).

Changes in the business during the reference period are reflected in a similar way as under EU competition law. The turnover of a business divested in the financial year preceding the concentration must be subtracted in full, and the turnover of acquired businesses must be added in full.

Foreign-to-foreign transactions are subject to merger control in Switzerland if the relevant thresholds are met. According to the Federal Supreme Court, the fact that the thresholds are met in a certain case sufficiently indicates local effects.

Foreign joint ventures are an exception to this, however. The Secretariat has published a notice according to which it does not consider the establishment of a joint venture in Switzerland notifiable (even if the turnover thresholds are met by the joint venture’s parent companies) if the joint venture does not have any activities in Switzerland and such activities are neither planned nor foreseeable. However, although that exemption has been confirmed in recent cases, there has been a case (VW/Enel/JV, 2021) where that general rule has not applied. In this case, the target company was to build charging stations for electric vehicles exclusively in Italy. ComCo assumed local effects regarding the target company, arguing that the usability of electric vehicles in Switzerland would be limited if they could not be charged in Italy, as many Swiss travel there for holidays. However, this case was very fact-specific and particular, and the conclusion might be drawn that the exemption for foreign joint ventures is not generally affected.

Jurisdictional thresholds in Switzerland are in the first instance turnover-based. The additional notification obligation based on one party’s confirmed dominance (see 2.5 Jurisdictional Thresholds) requires that the concentration concerns either that market or an adjacent market or a market upstream or downstream thereof. Therefore, confirmed dominance of one party is in itself not sufficient to trigger a notification obligation.

Conversely, it is also not required that there is a substantive overlap in the market where one party is dominant for this threshold to be met, but it is sufficient that the transaction has a competitive relation to such market.

Three types of joint ventures are subject to merger control:

• the acquisition of joint control over an existing joint venture constitutes a concentration if the joint venture performs all the functions of an autonomous economic entity on a lasting basis;
• the creation of a new joint venture constitutes a concentration if the joint venture performs all the functions of an autonomous economic entity on a lasting basis and if the business activities of at least one of the controlling undertakings are transferred to the joint venture; and
• the acquisition of joint control over an existing undertaking constitutes a concentration.

If the jurisdictional thresholds are not met, ComCo does not have the power to investigate a transaction or to impose any corrective measures if a transaction creates or strengthens a dominant position liable to eliminate effective competition.

Implementation of a transaction must be suspended prior to clearance.

If a notifiable transaction is implemented before clearance, the undertakings concerned may be fined up to CHF1 million. The responsible individual(s) may in addition be fined up to CHF20,000. These fines are made public. Fines have also been imposed in the case of foreign-to-foreign transactions.

The parties may request ComCo to authorise implementation of the concentration prior to the review period. The parties need to show good cause for such implementation in that the concentration might otherwise not be implemented, or that third parties might suffer significant harm if the implementation was suspended during the review period.

Special rules apply to concentrations of banks that are deemed necessary for reasons of creditor protection. Such concentrations are reviewed by FINMA, which may allow implementation at any stage of the proceedings. The proposed takeover of CS by UBS by way of an absorption merger within the meaning of Article 3(1)(a) and Article 4(1)(a) of the Merger Act is subject to the review competence of FINMA as a merger within the meaning of Article 4(3)(a) CartA, because the protection of creditor interests is decisive for the assessment of admissibility and FINMA has assumed jurisdiction.

There are no specific rules for public takeover bids. ComCo should be contacted in advance in case of such bids in order to allow for co-ordination of their proceedings with the proceedings of the competent takeover board. It is also possible to request authorisation prior to the expiry of the review period in such cases or to propose arrangements on voting rights (see 2.15 Circumstances Where Implementation Before Clearance Is Permitted).

A carve-out of affected businesses or assets to allow for the closing of a global transaction before receipt of clearance in Switzerland does not appear to have so far been accepted by ComCo. In particular, in the case of takeover bids, ComCo has in practice accepted arrangements on the limitation of voting rights during pending merger control proceedings.

There are no specific deadlines for notification. Notification must be submitted prior to the implementation of the concentration, and the concentration must not be implemented prior to clearance (or grant of a derogation from the suspensive effect). Implementation without notification (see 2.2 Failure to Notify) or during pending proceedings (see 2.13 Penalties for the Implementation of a Transaction Before Clearance) may result in a fine for the entity concerned of up to CHF1 million.

In addition, the responsible individual(s) may be fined up to CHF20,000 each.

In principle, a concentration can only be notified once the parties have reached a binding agreement. In practice, ComCo accepts notifications already at an earlier stage when the parties can document a good faith intent to reach a binding agreement, as expressed in particular in a letter of intention or memorandum of understanding. There have yet to be any cases where a notification has been accepted at a stage where such good faith intention could not be documented in writing.

For the Phase I review period, a filing fee of CHF5,000 is charged. Usually, the notifying undertaking is asked for payment after expiry of the review period. For a Phase II investigation, the fees are charged based on the time spent by ComCo and the Secretariat. Hourly rates range from CHF100 to CHF400, depending on the urgency of the matter and the seniority of the respective individuals.

In the case of a merger, both merging parties need to jointly submit the notification. In the case of an acquisition of control, the notification obligation is upon the undertaking(s) acquiring control. If a joint notification is made, the notifying companies have to designate at least one joint representative.

ComCo has published a form for the notification of concentrations. Essentially, the notifying undertaking(s) are required to submit the following information:

• name, domicile and a brief description of the business activities of the undertakings concerned;
• a description of the planned concentration, including the goals that are pursued with it;
• the turnover, gross premiums or gross income, as the case may be, of the undertakings concerned in Switzerland and worldwide;
• information on the relevant product and geographic markets affected, including market shares of the undertakings concerned and principal competitors for the preceding three years; and
• information regarding market entries in the past five years and excepted market entries, as well as the market entry costs.

In addition, copies of the following documents need to be provided:

• the most recent annual accounts and reports of the undertakings concerned;
• any agreements affecting or related to the transaction;
• in the case of a public takeover, offer documentation; and
• reports, analyses and business plans made with regard to the concentration, to the extent they contain relevant information for the competitive assessment of the concentration.

The notification form may be submitted in any official Swiss language (ie, German, French or Italian). Accompanying documents may also be submitted in English. There are no requirements for formalisation of submitted documents, such as certification, notarisation or apostillation.

There are no penalties for incomplete notifications. However, the review period will only commence once the notification is complete. Within ten days of submission of the notification, the Secretariat will confirm its completeness, or request additional information.

An undertaking that submits incorrect or misleading information may be fined up to CHF100,000. In addition, ComCo may withdraw the clearance decision.

ComCo is required to notify the undertakings concerned within one month from receipt of the complete notification whether it intends to open an investigation (Phase I). If no such notice is given within that time period, the transaction may be implemented. ComCo often provides the companies in such cases with a “comfort letter” stating that it considers the concentration unobjectionable.

If ComCo decides to open an investigation, this must be completed within four months, unless ComCo is prevented from doing so for reasons attributable to the undertakings concerned (Phase II).

The parties can and typically do engage in pre-notification with the Secretariat. The parties submit a draft filing that the Secretariat will review and comment upon with regard to any information still required for the notification to be considered complete. In complex transactions, pre-notification is generally welcomed by the Secretariat and highly recommended.

The Secretariat regularly requests information during the review process. If the request pertains to information that the Secretariat considers required for completeness of the notification, the review period only starts once such information has been submitted. The Secretariat may also request additional information that is not required for completeness of the notification.

The parties are obliged to provide such information within the deadline set by the Secretariat, but the request does not suspend the review period.

Prior to the notification of a concentration, the undertakings concerned and the Secretariat may mutually agree on the details of the content of the notification. The Secretariat may grant exemptions from the obligation to submit specific information or documents. In practice, this is relevant in particular for foreign-to-foreign mergers with limited effects on the Swiss market.

The substantive test is based on a dominance test supplemented by an additional test on the remaining degree of competition. According to this “dominance-plus test”, a concentration may only be prohibited if:

• the transaction creates or strengthens a dominant position;
• that dominant position is liable to eliminate effective competition in the relevant market; and
• the transaction does not strengthen competition in another market outweighing the negative effects of the dominant position.

Compared to other jurisdictions, this threshold is high. In view of this high threshold, in the past 22 years (the current merger control system was introduced in 1996), only five mergers have been prohibited by ComCo: Berner Zeitung/Thuner Tagblatt (1998, notification withdrawn prior to formal prohibition); Berner Zeitung/20 Minuten (2004, subsequently cleared upon appeal subject to obligations); France Télécom/Sunrise Communications (2012); Ticketcorner/Starticket (2017); and Schweizerische Post/Quickmail Group (2024).

It is currently contemplated to replace this dominance-plus test by the SIEC test (significant impediment to effective competition) as applied in the EU. The Federal Council has published a draft for an amendment of the Cartel Act and conducted a public consultation procedure that lasted until March 2022. In March 2023, the Federal Council instructed the Department of Economic Affairs, Education and Research to submit a dispatch on the partial revision of the Cartel Act, including the replacement of the dominance-plus test by the SIEC test by the second quarter of 2023. On 24 May 2023, the Federal Council adopted the dispatch on the partial revision of the Swiss Cartel Act. The proposals for the modernisation of merger control remain essentially unchanged compared to the previous draft. The core element is the introduction of the SIEC test and thus, the alignment of the substantive test criteria for mergers with EU law.

Markets are considered affected by the transaction if either two or more of the undertakings concerned jointly hold a market share of 20% or more in Switzerland or in the relevant geographic market, or in which one of the undertakings concerned holds a market share of 30% or more in Switzerland or in the relevant geographic market.

ComCo regularly considers the practice of the European Commission, in particular with regard to market definitions. Furthermore, the case law in neighbouring countries of Switzerland will also be considered, more specifically, the practice of the German Federal Cartel Office.

As mentioned in 4.1 Substantive Test, the current substantive test in Switzerland is a dominance-plus test. Applying this test, ComCo investigates unilateral effects, co-ordinated effects in the case of oligopolies, conglomerate effects, as well as vertical concerns and the elimination of potential competition.

In the past, ComCo often did not consider economic efficiencies as a mitigating factor. In theory, efficiencies may be taken into account if they are likely to prevent the elimination of effective competition.

Furthermore, under the Swiss substantive test, economic efficiency gains in one market may outweigh the effects of the creation or strengthening of a dominant position in another market (see 4.1 Substantive Test). This part of the test has for a long time not had practical relevance. In a recent case, however, for the first time ComCo authorised a concentration (Gateway Basel Nord, 2019) explicitly based on that provision (Article 10(2)(b) Cartel Act), which indicates the increased role of economic efficiencies in Swiss merger control law (see 10.2 Recent Enforcement Record).

ComCo does not consider non-competition issues, such as industrial policy, national security, foreign investment, employment or other public interest issues, in its review of planned concentrations. As an exception to that principle, the Cartel Act provides that in a concentration of banks that is deemed necessary by FINMA for reasons related to creditor protection, the interests of creditors may be given priority (Article 10(3) Cartel Act). In such a case, FINMA takes the place of ComCo. To give an example from the year 2023, the proposed takeover of CS by UBS by way of an absorption merger within the meaning of Article 3(1)(a) and Article 4(1)(a) of the Merger Act was subject to the review competence of FINMA as a merger within the meaning of Article 4(3)(a) CartA, because the protection of creditor interests is decisive for the assessment of admissibility and FINMA has assumed jurisdiction.

Further, in the case of a prohibition of a concentration by ComCo, the undertakings concerned may request the Federal Council of Switzerland to authorise the concentration for reasons of public interest. In such a case, the Federal Council may take into account both competition-related and non-competition-related considerations in its assessment of the concentration. Up to now, no such authorisation has been granted.

Proposed Federal Act on Foreign Direct Investment Control

The Federal Council conducted a consultation process for a new Federal Act on Foreign Direct Investment Control in May 2022. In May 2023, the Federal Council decided to substantially revise the proposal from the consultation, following which, a revised draft of the Investment Control Act was published on 15 December 2023. The proposed Federal Act will introduce foreign investment control into the Swiss legal framework (see 1.2 Legislation Relating to Particular Sectors). It is proposed to introduce a notification and approval requirement for certain takeovers of domestic undertakings by foreign state investors (prior to closing) that endanger or threaten the public order or security of Switzerland. The investment control rules will be separate from the merger control rules. It is envisaged that the notification must be submitted to the State Secretariat for Economic Affairs (SECO) but that the competence not to approve a notifiable investment will, however, be held exclusively by the Federal Council at the request of the EAER. See 9. Foreign Direct Investment/Subsidies Review for more details.

No specific rules are applicable to joint ventures, which are also assessed under the dominance-plus test (see 4.1 Substantive Test).

ComCo may prohibit or interfere with a transaction only if the conditions of the dominance-plus test are met (see 4.1 Substantive Test). If the companies do not comply with a prohibition decision, ComCo may take all the necessary steps to restore effective competition. In particular, ComCo may order the separation of any combined undertakings or the cessation of the controlling influence. In addition, ComCo may sanction companies that do not comply with a prohibition decision with a fine of up to CHF1 million.

A concentration may be cleared subject to certain conditions or obligations. The law does not specify the types of conditions or obligations that may be ordered. In practice, both divestitures and certain behavioural remedies have been implemented, and the scope of these remedies is discussed by the parties with ComCo.

Both behavioural and structural remedies have been used in practice, and the choice depends on the characteristics of the affected markets and the identified competition concerns. While ComCo prefers structural undertakings (ie, divestitures), it has been shown to be more open to behavioural remedies than the European Commission.

In the case of international transactions, it is particularly important to co-ordinate the remedies offered with those offered by other competition authorities, in particular the European Commission.

Remedies ordered by ComCo can only take into account competition issues.

The law does not set a standard that remedies must meet to be deemed acceptable.

Other than in EU merger control proceedings, there are no procedural provisions under Swiss law with regard to remedies, such as the timing of their negotiations. The most appropriate moment to commence remedy negotiations has to be determined in each individual case.

ComCo does not depend on the parties to propose remedies – that is, it can order remedies on its own. However, in practice, the parties are closely involved in the development of potential remedies.

Swiss law distinguishes between conditions and obligations: conditions need to be implemented before the concentration is completed, whereas obligations need to be implemented thereafter. In the latter case, according to the practice of ComCo, the remedy must be implemented within a specified period – that is, it is not sufficient for the parties to commit to divest certain assets “as early as possible”.

If remedies are not fully complied with, ComCo may impose sanctions of up to CHF1 million or, in the case of repeated non-compliance, an amount of up to 10% of the overall turnover of all the undertakings concerned in Switzerland.

At the end of Phase I proceedings (preliminary investigation), ComCo may issue an order to clear the transaction if conditions and obligations are imposed. Without remedies, ComCo does not regularly issue a formal order at the end of Phase I, but provides the parties with a comfort letter clearing the transaction. ComCo cannot prohibit the transaction at the end of Phase I.

At the end of Phase II proceedings (in-depth investigation), a formal decision is ordered clearing (potentially subject to conditions and/or obligations) or prohibiting the concentration.

In 2017, ComCo issued a prohibition decision (one of only five prohibitions since 1996) regarding the proposed concentration of Ticketcorner and Starticket. There has not been a clearance subject to conditions and/or obligations recently.

ComCo only considers ancillary restraints to the extent they are directly related to and necessary for the concentration. Whether these conditions are given is assessed according to criteria that are comparable to the criteria applicable under EU competition law, as set out in the European Commission’s Notice on Ancillary Restraints.

However, ancillary restraints that qualify under these criteria are not automatically covered by the clearance of the transaction, but only upon specific request. ComCo expects the notifying undertaking(s) to specifically describe the ancillary restraints and provide an assessment in the notification as to why they qualify as directly related and necessary to the concentration.

The Secretariat regularly sends out questionnaires to third parties, in particular customers and competitors, to solicit their opinion on a planned concentration and to obtain a better understanding of the market conditions and the competitive environment. These third parties do not have any formal procedural rights. ComCo is neither obliged to send out questionnaires, nor to consider the replies received.

Third parties also do not have legal standing to appeal merger decisions.

The Secretariat regularly contacts third parties as part of its review process by sending out questionnaires. Where remedies are offered, the Secretariat may obtain the assessment of such remedies by market participants (ie, market testing).

The fact of the submission of a notification is not made public. Conversely, the decision to open an investigation proceeding (Phase II) and the final decision of ComCo authorising or prohibiting a concentration are published in the Official Federal Gazette and in the Swiss Official Gazette of Commerce. Further, ComCo regularly publishes the reasoning of its merger decisions in its quarterly journal.

The undertakings concerned may specify what information they consider as business secrets and ask ComCo to keep such information confidential. In the event of a difference of opinion on whether certain information constitutes a business secret, ComCo will issue an appealable order.

The agreement between the EU and Switzerland concerning co-operation on the application of their competition law provides a framework for co-operation between ComCo and the European Commission. By virtue of this agreement, information may under limited circumstances be shared with the other authority without the consent of the undertakings concerned (second-generation agreement). In such a case, ComCo has to notify the undertaking concerned and invite it to state its views before transmitting the data to the European Commission.

With regard to other authorities, such exchange of information is only possible with the consent of the parties. Typically, ComCo will then request a waiver letter from the undertakings concerned.

Decisions of ComCo in merger control cases are subject to an appeal to the Federal Administrative Court. The Federal Administrative Court has full jurisdiction to review ComCo’s findings of fact, legal assessment and sanctions or penalties, under all aspects of fact and law.

The judgment of the Federal Administrative Court may be appealed to the Federal Supreme Court. The Federal Supreme Court can review the judgment only with respect to its conformity with the law. It is bound by the facts that have been established before the Federal Administrative Court, unless they are manifestly incorrect or have been determined in violation of legal provisions.

An appeal to the Federal Administrative Court needs to be filed within 30 days of formal notification of ComCo’s decision. The duration of the appeals proceeding varies, but regularly amounts to significantly more than a year.

An appeal to the Federal Supreme Court needs to be filed within 30 days of receipt of the formal notification of the judgment of the Federal Administrative Court. The duration of the proceedings regularly amounts to a year or more.

Third parties cannot appeal a clearance decision.

There is currently no general foreign investment control in Switzerland, although special requirements apply in certain sectors where prior government approval is required (eg, banking/securities and real estate) – see 1.2 Legislation Relating to Particular Sectors. However, the legal situation might change in the future.

In March 2020, the Swiss parliament asked the Federal Council to propose foreign investment control legislation, aimed in particular at protecting Swiss expertise, employment, public order and safety. Following the presentation of the key points of a proposal for Swiss investment control in August 2021, the Federal Council published the preliminary draft bill and opened the consultation process for a new Federal Act on Foreign Direct Investment Control in May 2022. Following the consultation process, this draft turned out to be too extensive in scope. According to the initial draft, the acquisition of control over Swiss companies by foreign investors should be subject to review in certain industries if the companies provide non-substitutable services or if state entities in security-relevant areas are critically dependent upon them. Furthermore and regardless of the sector, review was envisaged for investments by foreign states or state-related actors. According to that initial draft, private foreign investors were also subject to the notification and approval requirement, particularly in security-relevant sectors.

On 15 December 2023, the Federal Council adopted the dispatch on the Investment Control Act. As compared to the preliminary draft of 2022, the draft bill is a minimal solution with significantly reduced scope of application. According to the draft, acquisitions of Swiss undertakings will only be notifiable if:

• a foreign state investor acquires control;
• a (security-)critical sector is concerned; and
• certain de minimis or turnover thresholds are exceeded.

Examples for (security-)critical sectors are defence equipment, electricity grids and production, and health and telecoms infrastructures.

The investment control rules will be separate from the merger control rules. It is envisaged that the notification must be submitted to SECO and that the decision not to approve a notifiable investment will, however, be held exclusively by the Federal Council at the request of the EAER.

The draft Investment Control Act is now being tabled in parliament for deliberation. It is expected to come into force in 2025 at the earliest.

Introduction of the SIEC Test

With respect to the substantive test for assessing mergers, the replacement of the current dominance-plus test by the SIEC test, as applied in the EU, is currently being contemplated. The Federal Council has published a draft for an amendment of the Cartel Act and conducted a public consultation procedure, which lasted until March 2022. In March 2023, the Federal Council instructed the EAER to submit a dispatch on the partial revision of the Cartel Act by the second quarter of 2023. On 24 May 2023, the Federal Council adopted the dispatch on the partial revision of the Swiss Cartel Act. The proposals for the modernisation of merger control remain essentially unchanged compared to the previous draft. The core element is the introduction of the SIEC test. The change from the current dominance-plus test to the SIEC test will bring the antitrust review standard for mergers in line with international practice (see 4.1 Substantive Test). In addition, the consideration of efficiencies is to be expressly anchored in the law (Article 10(2)(b) of the draft CartA). The dispatch emphasises that these amendments will make merger control more closely aligned with economic principles and more targeted. When examining mergers, “justified and verifiable” efficiency advantages for consumers must be taken into account. Following the practice in the EU, the “appropriate participation” – understood in a dynamic sense – of consumers should be necessary. If such efficiency benefits at least offset the negative effects of the merger, it must be approved.

Exemptions from notification obligations

The dispatch also provides for exemptions from the notification obligation for certain internationally notified mergers. In particular, there should be no notification obligation if all affected markets include at least Switzerland and the EEA (no mere national geographic market) and the proposed concentration is also notified to the European Commission (Article 9(1bis) of the draft CartA). In these cases, the companies should submit a copy of the notification to ComCo within ten days of submitting it to the European Commission (Article 9(1ter) of the draft CartA).

Federal Act on Foreign Direct Investment Control

In March 2020, the Swiss parliament asked the Federal Council to propose a foreign investment control legislation, aimed in particular at protecting Swiss know-how, employment, public order and safety. In August 2021, the Federal Council presented the key points of its proposal for Swiss investment control. The Federal Council published the preliminary draft bill and opened the consultation process for a new Federal Act on Foreign Direct Investment Control in May 2022. Subsequent to the consultation process, the Federal Council decided to substantially revise the proposal from the consultation. On 15 December 2023, the Federal Council adopted the dispatch on the Investment Control Act. As compared to the preliminary draft of 2022, the draft bill is a minimal solution with significantly reduced scope of application (see 1.2 Legislation Relating to Particular Sectors).

Ticketcorner and Starticket

In 2017, ComCo issued its fourth prohibition decision in the 22-year history of merger control in Switzerland by prohibiting the proposed merger between Ticketcorner and Starticket, two Swiss ticketing companies that are controlled by Tamedia and Ringier, two Swiss media groups. The two companies are active, among others, in the market for distribution of tickets for events, such as concerts and shows, through physical and online channels (primary ticketing). ComCo concluded that the proposed merger would eliminate effective competition in primary ticketing, and strengthen the market position of the two ticket companies. For lack of feasible remedies, the concentration was prohibited.

Gateway Basel Nord

In 2019, ComCo explicitly relied on economic efficiency considerations in a recent concentration in the logistics sector (Gateway Basel Nord). In the respective case, three companies planned a large terminal with gateway function for combined transport resulting in major efficiency gains (lower shunting costs and volume bundling). The investigation by ComCo revealed the possibility of eliminating effective competition in the markets for certain cargo-handling services.

As provided for under Article 10(2)(b) of the Cartel Act, a concentration leading to or strengthening a dominant position liable to eliminate effective competition can be cleared if the concentration strengthens competition in another market such that the harmful effects of the dominant position are outweighed (see 4.5 Economic Efficiencies). ComCo considered that the large terminal would lead to considerable improvements in combined transport and significant savings of cost and time, mainly related to rail freight transport and operator services. It concluded that these improvements outweighed the disadvantages in the markets for cargo-handling services. Therefore, ComCo cleared the concentration unconditionally.

Schweizerische Post, Quickmail and Planzer

In July 2023, Schweizerische Post (Swiss Post) announced the takeover of the Quickmail Group. Schweizerische Post justified this transaction with the financial situation of Quickmail. In 2024, ComCo announced its prohibition decision by prohibiting the proposed acquisition of control by Schweizerische Post over Quickmail Group by press release. The Quickmail Group, with its two subsidiaries Quickmail and Quickpac, delivers letters, unaddressed mail (eg, advertising flyers), newspapers and magazines, as well as parcels, throughout Switzerland. Schweizerische Post is also active in these areas. ComCo examined this takeover in detail and found that it would eliminate competition in the market for national addressed bulk mail items weighing over 50 grams for business customers. It would also create or strengthen a dominant position for Schweizerische Post in various letter and parcel post markets and the market for the delivery of newspapers and magazines. The takeover would create a de facto monopoly for Schweizerische Post.

Schweizerische Post and Quickmail argued that this was a restructuring takeover. ComCo can allow such a takeover if it impairs competition, but the negative effects on competition would also occur without the merger (“failing company defence”). This would be the case if the Quickmail Group were to disappear from the market within a short period of time without support and, as a result, a large proportion of the Quickmail Group’s customers would switch to Schweizerische Post anyway. In addition, there must be no more competition-friendly alternative to the merger. ComCo’s in-depth investigation revealed that the latter condition was not met. In addition to Schweizerische Post, there was an alternative potential buyer of the Quickmail Group, which had many years of experience in the area of postal services. The takeover by this alternative prospective buyer would enable the Quickmail Group to continue to exist on the market, thereby maintaining competition with Schweizerische Post and thus representing a more competition-friendly solution than the takeover by Schweizerische Post. Shortly after ComCo’s prohibition decision, it was announced that the logistics company Planzer would take over the postal service providers Quickpac and Quickmail.

Given the high threshold for intervention when a dominant position is liable to exclude effective competition (see 4.1 Substantive Test), single-firm dominance (unilateral effects) is rather rare. Instead, there is a certain focus in ComCo on collective dominance (co-ordinated effects), where it is assumed that the merged entity may enter into collusive practices together with another company. A full analysis of these effects was recently conducted in a proposed merger in the telecommunications sector (Sunrise/UPC, 2019), in an acquisition of joint control over an existing undertaking in the field of rail transport of goods and related logistics (SBB Cargo, 2020) and in an acquisition of control in the field of Out-of-Home Advertising (TX Group/Clear Channel, 2022).