Answer ... The clearance of a contemplated concentration may be subject to certain conditions or obligations designed to safeguard effective competition. Even more so, the principle of proportionality requires the Swiss Competition Commission to assess ex officio whether conditions or obligations that eliminate all of its material objections would be available to allow it to clear a concentration instead of blocking it. The Swiss merger control regime does not specify the types of conditions or obligations that may be attached. Hence, both structural remedies (eg, divestments) and behavioural undertakings are possible.
Answer ... Remedies in the form of conditions and obligations may, in principle, be proposed at any time throughout the review process, including in Phase I and even in the pre-notification phase. However, proposals for remedies are rarely offered by the undertakings concerned in a Phase I investigation. Recent cases have shown that remedies are generally discussed in detail between the Secretariat or the Swiss Competition Commission (COMCO) respectively and the undertakings concerned upon specific request by the COMCO to outline possible conditions and other remedies.
In multi-jurisdictional merger control proceedings, it is important to coordinate the remedies proposal with all merger control authorities involved (ie, the European Commission).
Answer ... Remedies have been required in relatively few foreign-to-foreign transactions. However, particularly in parallel merger control proceedings with the European Commission, the Swiss Competition Commission has also recognised and accepted the remedies offered to the European Commission.