Answer ... If a contemplated concentration that is subject to the merger control notification obligation is not filed, the undertaking(s) that was or were respectively required to notify the concentration may face a fine of up to CHF 1 million. The responsible undertaking(s) may also be required to take measures to reinstate effective competition, either by unwinding the concentration, by ceasing to exercise control or by any other appropriate action, such as termination of specific agreements, personnel ties or contractual guarantees to competitors or counterparties.

Furthermore, the responsible individuals may also be held personally liable and fined up to CHF 20,000. To date, the Swiss Competition Commission has imposed several fines on undertakings in default of their notification obligations. By contrast, the responsible individuals of such undertakings have not been fined thus far. The respective fines are calculated based on the following objective criteria:

• Intentional or negligent violation of the notification obligation;
• The importance of the undertakings concerned in the relevant market(s), measured by turnover realised in Switzerland;
• Whether, prima facie, the contemplated concentration represents a threat to competition. Such a threat is presumed if the aggregate market share of the undertakings concerned in the concentration is 20% or more or, if there is no market share addition, if the market share of one of the undertakings concerned amounts to 30% or more; and
• Whether the contemplated concentration adversely affects effective competition – that is, whether it creates or enhances a dominant position in affected markets that is liable to eliminate effective competition, without enhancing competition in another market in a way that outweighs the negative effects of the dominant market position.

Answer ... If undertakings fail to comply with the provisional ban on closing a contemplated transaction after notification to the Swiss Competition Commission, they may face a fine of up to CHF 1 million. The responsible undertaking(s) may also be required to take measures to reinstate effective competition – either by unwinding the concentration, by ceasing to exercise control or by any other appropriate action, such as the termination of specific agreements, 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 ... Compliance with conditions and/or obligations may be monitored by the Swiss Competition Commission (COMCO) itself or the Secretariat, respectively, or by an appropriate monitoring trustee appointed by the COMCO, if necessary based on a proposal submitted by the undertakings concerned.