Answer ... Concentrations are subject to notification to the Swiss Competition Commission (COMCO) prior to completion (closing) if the turnovers of the undertakings concerned in the financial year preceding the concentration cumulatively exceeded the following thresholds:
- The undertakings concerned had an aggregate worldwide turnover of at least CHF 2 billion (at current exchange rates, approximately €1.87 billion or $2.062 billion); or (alternatively)
- The undertakings concerned had an aggregate turnover in Switzerland of at least CHF 500 million (at current exchange rates, approximately €467 million or $515 million); and (cumulatively)
- At least two of the undertakings concerned each had an individual turnover in Switzerland of at least CHF 100 million (at current exchange rates, approximately €93 million or $103 million).
The relevant turnover is calculated on a net and consolidated basis - that is, including all turnovers of the respective group and excluding all reductions such as discounts, rebates, value added tax and other consumption taxes, as well as other taxes directly related to turnover and intra-group business. The turnover of the seller is not taken into account.
In general, the test for the geographical allocation of the turnover is the place of performance - that is, the contractual delivery place of a product and the place where competition with other alternative suppliers takes place, respectively. The billing address, in principle, is irrelevant, which in particular plays a role for trading companies.
In the case of insurance companies, instead of ‘turnover’, the annual gross insurance premium is taken into account for determining the relevant thresholds. The turnover calculation for banks and financial intermediaries is based on gross income. With respect to the geographical allocation of turnover, the notification form of the COMCO provides that the turnover of a bank or financial intermediary is deemed to be generated in Switzerland if it is booked at a branch or office in Switzerland.
In addition, irrespective of the turnover thresholds set out above, the pre-merger notification requirement applies if one of the undertakings concerned has been held to be dominant in a market in Switzerland. For the dominance threshold to apply, the contemplated concentration must concern either this market, an adjacent market or a market upstream or downstream thereof (Article 9, paragraph 4 of the Swiss Federal Act on Cartels and Other Restrictions of Competition [Cartel Act]). Furthermore, the concerned undertaking must have been deemed dominant in the binding part of a final and binding decision of the COMCO or the appellate courts, respectively, in a proceeding under the Cartel Act. In contrast, no compulsory notification obligation is triggered if only the reasoning of a decision holds an undertaking to be dominant in a Swiss market.
In general, according to the Swiss Federal Administrative Tribunal, Article 9, paragraph 4 of the Cartel Act should be interpreted narrowly. In a subsequent recommendation, however, the COMCO held that a single economic entity between a joint venture and its mother companies had to be assumed. As a consequence, in a joint venture set-up, the companies controlling the joint venture must also be considered in order to determine whether a notification obligation is triggered.
There exists neither an official nor an unofficial publication of the COMCO listing all undertakings held to be dominant.
Importantly, notification to the COMCO is also required even if the concentration is subject to EU merger control (no one-stop shop), since Switzerland is neither a member of the European Union nor of the European Economic Area.