Answer ... The filing of a merger control notification is compulsory prior to completion (closing) of a contemplated concentration, provided that the requirements as set out in question 2.6 are met. No exceptions to this principle exist.

Answer ... Pre-notification is not compulsory, but is customary with the Secretariat, not with the Swiss Competition Commission (COMCO). In the pre-notification phase, unlike in other jurisdictions, the Secretariat in principle only reviews the draft notification and assesses whether it is complete; in general, it does not enter into pre-notification discussions with regard to the substantive assessment of the concentration.

However, it is possible to discuss with the Secretariat the scope of the information to be provided with the notification. This often happens in the case of foreign-to-foreign concentrations that meet the notification requirements (see question 2.6), but do not significantly affect the Swiss market, and to avoid further requests for information to complete the initial notification.

There is no formal simplified notification procedure or form. However, for valid reasons, the Secretariat may release the notifying undertaking(s) from the obligation to provide certain information and materials (Article 12 of the Ordinance on the Control of Concentrations of Undertakings). The pre-notification phase is kept confidential by the Secretariat.

Answer ... The responsibility for filing the merger control notification varies depending on the type of concentration.

In the case of a statutory merger, the notification must be made jointly by the undertakings concerned. Such parties incur joint and several liability in case of failure to notify.

Where control over an undertaking is acquired, responsibility for the merger control notification lies with the undertaking(s) acquiring (sole or joint) control.

Where a joint notification is required, the notifying undertakings must designate at least one common representative to the Swiss Competition Commission. Undertakings with a duty to notify or their representatives shall designate an address for services in Switzerland if they are domiciled abroad.

Answer ... Phase I (preliminary examination) is subject to a fixed fee of CHF 5,000, including any copying or postal charges. Subject to a final notification to be cleared in Phase I, the fixed fee in principle also includes the assessment of whether the submitted draft notification is complete.

The fee for Phase II (examination) is calculated on a time-spent basis. The applicable hourly rates vary between CHF 100 and CHF 400, depending on the seniority of the case handlers involved and the urgency of the matter.

According to the practice of the Swiss Competition Commission, the calculation scheme for Phase II examinations could also apply to Phase I proceedings if the Phase I results in a clearance decision that is subject to conditions or obligations.

Answer ... According to the Ordinance on the Control of Concentrations of Undertakings and the standard notification form of the Swiss Competition Commission (COMCO), the merger control notification shall include the following information and materials on the undertakings concerned:

• Names, registered offices and a description of their business activities;
• A description of the contemplated concentration, including its objectives;
• Turnover data, or gross premium or gross income, as the case may be, both worldwide and for Switzerland;
• Information on the relevant markets affected by the concentration - that is, markets in which one of the undertakings participating in the concentration has a market share of more than 30% or markets in which two or more undertakings participating in the concentration have an aggregate market share exceeding 20% (‘affected markets’);
• With regard to affected markets:
• • The market shares for the preceding three years and, if known, for each of the three main competitors on these markets;
  • An explanation of the basis used for calculating the market shares;
  • Information regarding undertakings that have newly entered the markets in the preceding five years;
  • Information regarding undertakings that might enter these markets within the next three years and, if possible, the costs that would arise from such market entry;
  • Copies of the latest annual accounts and business reports of the undertakings concerned; and
  • Copies of the relevant agreements, or offer documentation in case of a public offer, and copies of any reports, assessments and business plans made in connection with the contemplated concentration, to the extent that they contain information relevant to the competitive assessment.

The preparation of a complete filing depends on the complexity of the case and may take, as a rule of thumb, anywhere between two and 12 weeks. A filing can be made in any one of the official languages of Switzerland (German, French, Italian or, as a theoretical option, Rhaeto-Romanic, where specific conditions are met). Accompanying documents may also be submitted in English.

The undertakings concerned in concentrations and affected third parties shall generally provide the COMCO and the Secretariat with all information required for their investigations and produce the necessary documents. Failure to fulfil or incorrect fulfilment of the obligation to provide information is subject to fines of up to CHF 100,000 against the defaulting undertaking(s), or by fines of up to CHF 20,000 against the defaulting natural person(s). In both cases, among other things, the COMCO must have issued a binding decision on the duty to provide information, which has not been fulfilled or has not been fulfilled correctly by the addressee.

Answer ... In principle, no deadline for filing the notification exists. However, a contemplated concentration may not be closed prior to the clearance decision or, in the absence of any response from the Swiss Competition Commission (COMCO), prior to the expiry of the statutory deadlines. Hence, a merger control notification must be filed prior to completion of the contemplated concentration. Therefore, a merger control notification is typically filed after the relevant agreements have been concluded, but prior to completion.

In case of a public tender offer, the merger control notification must be filed immediately after publication of the tender offer and in any case before completion of the contemplated concentration, according to the published practice of the COMCO. The notification may also merely contain a credible statement of the intention to make a public tender offer.

The legal consequences where the responsible undertaking(s) fail(s) to notify a contemplated concentration that is subject to the compulsory merger control notification are outlined in question 3.8.

Answer ... According to the published practice of the Swiss Competition Commission (COMCO), the respective undertaking(s) may submit the merger control notification from the moment they decide to complete the contemplated concentration. Hence, the merger control notification can be filed as soon as the respective agreements have been concluded in whatever form (eg, a letter of intent or a share purchase agreement), closing generally being subject to condition precedents with regard to clearance of the contemplated concentration, among other things.

If a binding agreement has not yet been concluded and the concentration is merely intended, a notification is possible only if the undertakings show to the satisfaction of the COMCO that they are willing to conclude the relevant binding agreement. It is up to the undertaking(s) concerned to submit sufficient evidence to prove that the signing and closing of a contemplated concentration is plausible.

In case of a public tender offer, the notification may also merely contain a credible statement of the intention to make a public takeover offer. Undertakings may contact the Secretariat in order to discuss the admissible legal documents that are sufficient to constitute a notification.

Answer ... As a principle, a contemplated concentration may not be closed prior to the clearance decision or, in the absence of any response from the Swiss Competition Commission (COMCO), prior to the expiry of the statutory deadlines (standstill obligation). Hence, completion of the concentration in principle is suspended during Phase I and Phase II, as the case may be (see questions 2.7, 3.1 and 3.6).

Closing before final clearance is possible if the COMCO or its chamber for concentrations respectively (see question 1.3) grants provisional approval to do so upon submission of a reasoned request. If the COMCO commences Phase II, it should examine the opportunity of such provisional approval ex officio. The Swiss merger control regime requires that provisional approvals remain exceptional, to avoid creating a non-reversible situation in the market.

There are no formal conditions for provisional approval. The main criterion remains the degree of reversibility: the COMCO should ensure that it can effectively prohibit or grant conditional clearance without impairing market conditions. Provisional approval may cover the whole concentration or only parts of the markets concerned, and may be granted conditionally (ie, subject to conditions and obligations). The (rare) main use of the exception of a provisional approval is for the acquisition of distressed companies that otherwise would not remain a going concern.

In the banking sector, the Financial Market Supervisory Authority (FINMA) has competence to grant provisional approval if it considers that the contemplated concentration is necessary for the protection of creditors. FINMA is obliged by law to invite the COMCO to comment before granting provisional approval (see question 1.2).

If an undertaking fails to comply with the provisional ban on closing a notified concentration, the responsible undertaking(s) may face a fine of up to CHF 1 million. In addition, the responsible undertaking may be required to take measures to reinstate effective competition, whether by unwinding the concentration, by ceasing to exercise control or by any other appropriate action, such as the termination of personnel ties or contractual guarantees to competitors or counterparties. In addition, the responsible individuals may be held personally liable and fined up to CHF 20,000.

Answer ... The mere submission of a merger control notification is not made public by the Swiss competition authorities. However, the decision to commence Phase II and the final decision of the Swiss Competition Commission (COMCO) or statement in case of unconditional clearance will be published in the Official Federal Journal and the Official Commercial Gazette, as well as in the journal Law and Policy on Competition and on the COMCO’s website. However, with regard to such publications, the COMCO is bound not to disclose any business secrets of the undertakings concerned. The latter should specifically identify sensitive business information in the merger control notification and any accompanying documentation, and request the COMCO to keep all such information strictly confidential.