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 requested that the Federal Council (Switzerland’s executive branch) propose foreign investment control legislation with a particular focus on 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, the 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 pose a risk to or threaten public order or security in Switzerland. Whereas the focus was on state-owned and state-related foreign investors (notification and approval requirements for all sectors, except for the de minimis threshold), private foreign investors were also subject to notification and approval requirements 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 is limited to the investments most critical for security. A limitation in scope was announced, stating that the investment review will take effect when a foreign state-controlled investor acquires 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 serves as the decision-making body and consists of 11 to 15 members (currently 12), whom the Federal Council elects. 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 divided into four departments, each responsible for product markets, services, infrastructure, and construction; a fifth department, Resources, provides administrative and technical support 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 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 was decisive for the assessment of admissibility and FINMA had 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. Additionally, the responsible individual(s) may be fined up to CHF20,000 each.

There have been several instances where companies have been fined for failing to notify. These fines are publicly disclosed, and to date, no individuals have faced them.

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.

In Switzerland, acquiring minority or other interests that do not grant control is not subject to notification. However, such acquisitions can be reviewed as potentially anti-competitive agreements. ComCo states that an acquisition may be classified as an anti-competitive agreement if the parties involved 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 must be determined in the binding part of the decision – that is, the notification obligation is not triggered if an undertaking is only deemed to be dominant in the reasoning of a decision.

Turnover is calculated on a consolidated basis (excluding intra-group sales). Turnover is geographically allocated to the place where competition for the relevant customer has taken place, which is normally the domicile of the customer. If the parties involved do not sell directly to customers in Switzerland but use Swiss billing addresses for invoicing transactions that occur outside the country, that revenue will not be considered as generated 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, it is replaced 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 does not need to 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 manner similar to that 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 in Switzerland are subject to merger control if the relevant thresholds are met. The Federal Supreme Court has determined that meeting these thresholds indicates sufficient 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 joint venture’s parent companies meet the turnover thresholds) if the joint venture does not have any activities in Switzerland and such activities are neither planned nor foreseeable. However, although this exemption has been confirmed in recent cases, there has been a case (VW/Enel/JV, 2021) where the general rule did not apply. 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, initially, based on turnover. The additional notification obligation based on one party’s confirmed dominance (see 2.5 Jurisdictional Thresholds) requires that the concentration concerns either:

• that market;
• an adjacent market; or
• a market upstream or downstream thereof.

Therefore, the confirmed dominance of one party is in itself not sufficient to trigger a notification obligation.

Conversely, it is not required that there be a substantive overlap in the market where one party is dominant for this threshold to be met; however, it is sufficient that the transaction has a competitive relationship with such a 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 impose any corrective measures if a transaction creates or strengthens a dominant position that is 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 cases involving foreign-to-foreign transactions.

The parties may request ComCo to authorise the implementation of the concentration prior to the review period. The parties must demonstrate good cause for such implementation, as the concentration might not otherwise be implemented, or 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 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 has been 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 to allow for co-ordination of their proceedings with those 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 been accepted by ComCo so far. In particular, in the case of takeover bids, ComCo has, in practice, accepted arrangements limiting 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 at an earlier stage when the parties can demonstrate a good faith intent to reach a binding agreement, as expressed in a letter of intention or a 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.

In November 2024, the Ordinance on Fees under the Cartel Act was changed. Since 1 January 2025, ComCo’s filing fee for Phase 1 as well as for Phase 2 procedures is calculated on a time basis, with hourly rates ranging from CHF100 to CHF400 (depending on the urgency of the matter and the function level of the staff carrying out the work).

Based on experience from recent filings, the average filing fee is expected to amount to approx. CHF20,000-25,000 in Phase 1. Usually, the notifying undertaking is asked for payment after the expiry of the review period.

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 notifying 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 the 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. Additionally, ComCo may withdraw its clearance decision.

ComCo is required to notify the undertakings concerned within one month (Phase I) of receiving the complete notification whether it intends to open an investigation. 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 for the Secretariat’s review and comment on any additional information 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 necessary for the completeness of the notification, the review period only begins 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 notification’s content. The Secretariat may grant exemptions from the obligation to submit specific information or documents. In practice, this is particularly relevant for foreign-to-foreign mergers with limited impact 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. Given this high threshold, in the past 22 years (the current merger control system was introduced in 1996), only the following 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).

Currently, plans are underway to replace the dominance-plus test with the SIEC test (a significant impediment to effective competition), as it is 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 with 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. The proposal is currently under review and being discussed in parliament.

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 the relevant geographic market or in which one of the undertakings concerned holds a market share of 30% or more in Switzerland or 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 creating or strengthening 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, the 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 has been decisive for the assessment of admissibility and FINMA has assumed jurisdiction.

If ComCo prohibits a concentration, the companies involved can request that the Federal Council of Switzerland authorise the concentration based on public interest. In these instances, the Federal Council may consider both competition-related and non-competition-related factors when evaluating the concentration. To date, 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 apply 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. Additionally, ComCo may impose a fine of up to CHF1 million on companies that fail to comply with a prohibition decision.

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 regarding remedies, such as the timing of their negotiations. The most appropriate moment to initiate remedy negotiations must be determined in each individual case.

ComCo does not depend on the parties to propose remedies; instead, 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 fulfilled 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 undertakings involved 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 to clear (potentially subject to conditions and/or obligations) or prohibit 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 imposed is assessed according to criteria comparable to those 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 transaction clearance 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 questionnaires to third parties, including customers and competitors, to solicit their opinions on a planned concentration and to gain a better understanding of 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 that a notification is submitted 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 for its merger decisions in its quarterly journal.

The undertakings concerned may specify what information they consider to be business secrets and request that ComCo 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 must notify the undertaking concerned and invite it to express its views before transmitting the data to the European Commission.

Regarding other authorities, such an 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 must be filed within 30 days of receiving 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; however, 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 requested that the Federal Council propose foreign investment control legislation with a particular focus on 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), the 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. In comparison to the preliminary draft of 2022, the draft bill presents a minimal solution with a 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 of (security-)critical sectors include defence equipment, electricity grids and production, as well as 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. The National Council, as one chamber of parliament, tightened the draft bill in September 2024. Specifically, it decided that investment controls should also apply to non-state investors. In addition to public order and security, the supply of essential goods and services is explicitly mentioned as worthy of protection. The Council of States, the other chamber of parliament, is currently debating the draft bill. It is currently unclear when it will come into force.