Merger Control 2026 - Switzerland

1 Relevant Authorities and Legislation

1.1 Who is/are the relevant merger authority(ies)? If relevant, please include details of: (i) independence from government; (ii) who the senior decisionmakers are (e.g. Chair, Chief Executive, Chief Economists), how long they have been in position, and their professional background (lawyer, economist, academia, industry, professional services, politics, etc.); and (iii) any relevant key terms of appointment (e.g. duration of appointment) of those in leadership positions (such as Chair, Chief Executive, and Chief Economist)

The Swiss Competition Commission (the ComCo) is the competition authority that oversees merger control procedures. The ComCo receives support from its investigative body, the Secretariat of the Competition Commission (Secretariat). The Secretariat carries out merger control-related investigations and is the primary counterpart of undertakings that notify a transaction. The Secretariat comprises four divisions, dealing with services, infrastructure, construction and product markets and is headed by its Executive Board, made up of a Director, a Deputy Director and three Vice-Directors. The ComCo is a part-time body and consists of 11–15 members (currently, it comprises 12 members), appointed by the Federal Council. The members are each elected for four years and the tenure is limited to 12 years. The majority are independent experts, such as university professors in the fields of law or economics. The remaining members are representatives of business and consumer organisations. The competition authorities are not political bodies but remain independent from the Government and the administrative authorities (Art. 19 (1) CartA). The offices of the ComCo and the Secretariat are in Bern, the capital of Switzerland.

Further information about the ComCo is available at: https://www.weko.admin.ch/weko/en/home.html

1.2 What is the merger legislation?

Swiss merger control procedures are governed by the Federal Act on Cartels and other Restraints of Competition (CartA), and the Merger Control Ordinance (MCO). Furthermore, the ComCo has issued a standard merger notification form and has published a notice on certain practices regarding the notification of joint ventures (cf. questions 2.7 and 2.8 below), the geographical allocation of turnovers and the necessary information on affected markets (cf. question 3.11 below).

The CartA was originally enacted in 1996 and revised in 2004. A proposed second revision was rejected by the Swiss Parliament in 2014. Currently, there is a new attempt at a partial reform of the CartA with some aspects of the reform also relating to merger control (cf. question 6.3 below).

1.3 Is there any other relevant legislation for foreign mergers?

There is no specific relevant legislation for foreign mergers. However, there are certain specific rules that are applicable to regulated industries, where special requirements, regulatory approvals or notification duties may apply (cf. question 1.4 below).

Furthermore, certain restrictions may apply to the direct or indirect acquisition of real estate in Switzerland by foreigners. While there have been continuous liberalisations over recent years, there are still some restrictions, e.g., passive capital investments in Swiss real estate can be executed without approval, unless such real estate is used for residential purposes.

1.4 Is there any other relevant legislation for mergers in particular sectors (e.g. digital)?

There may be the need for additional notifications or consent in the following industry sectors:

• Banking and insurance: In Switzerland, banks and insurance companies require a licence issued by the Swiss Financial Market Supervisory Authority (FINMA) pursuant to the Banking Act and the Insurance Supervisory Act. Once licensed, they are subject to ongoing supervision by FINMA. One requirement to obtain and maintain the licence is that each individual or entity that (i) directly or indirectly holds at least 10% of the capital or the votes in a bank or insurance company, or (ii) otherwise has significant influence on the management (collectively, Qualified Participations), must ensure that its influence does not adversely affect the prudent and solid management of the bank or insurance company in question. Changes with respect to Qualified Participations must be reported to FINMA by the selling and the acquiring party prior to the transaction.
• Air transport: According to Art. 11 of the bilateral agreement between Switzerland and the EU on air traffic, the EU Commission will assess merger control procedures in this sector in cooperation with the ComCo. The authorities will apply the EU Merger Control Regulation No. 139/2004.
• Radio/TV, telecommunications, and rail transport: The acquisition of a company that holds a licence in these sectors must be notified and approved by the relevant authority.

1.5 Is there any other relevant legislation for mergers which might not be in the national interest?

In May 2022, the Swiss Federal Council initiated the consultation procedure on a new legislation to screen foreign direct investments (FDI) in Switzerland. The proposed FDI control regulation seeks to prevent threats to public order and security as a potential consequence of foreign investors acquiring control of Swiss companies. The draft legislation is currently being reviewed by the Swiss Parliament.

2 Transactions Caught by Merger Control Legislation

2.1 Which types of transaction are caught – in particular, what constitutes a "merger" and how is the concept of "control" defined?

Under Art. 4 (3) CartA, the following types of transactions are subject to the merger control provisions:

• Statutory mergers: A merger in the sense of the company law of two or more previously independent undertakings.
• Acquisition of control: Any transaction by which one or more undertakings acquire direct or indirect control over one or more independent undertakings, or over a part thereof

The acquisition of "control" is further defined in Art. 1 MCO, according to which an undertaking acquires control if it may exercise decisive influence over another undertaking. This may be based on ownership or similar rights, as well as contractual agreements, which allow decisive influence on key governance areas, and might even be based on a significant loan, combined with additional contractual rights. Joint control by more than one undertaking is, in particular, assumed if the controlling undertakings have a veto right for strategic decisions, such as decisions regarding the management of the company, its budget, its business plan, significant investments, market-specific rights, etc. Under certain conditions, a change in the quality of control may also be considered an acquisition of control (e.g., change from sole to joint control and vice versa, the increase of jointly controlling undertakings, or if one jointly controlling undertaking is replaced by another). Whether the reduction of the number of jointly controlling undertakings leads to a change in the quality of control must be assessed on a case-by-case basis.

2.2 Can the acquisition of a minority shareholding or other form of influence amount to a "merger"?

The acquisition of minority shareholdings or other forms of influence may qualify as an acquisition of control if there are additional agreements that confer control or a veto right on the acquirer, or if the shareholder structure or quota of presence is such that the minority shareholding regularly allows for a majority of the acquirer at the annual general meetings. According to the ComCo, control can be acquired even without acquisition of shares if contractual agreements or factual circumstances lead to de facto control of the acquirer, e.g., based on a loan agreement together with additional contractual rights (such as distribution agreements, information rights, etc.).

2.3 Are joint ventures subject to merger control?

Yes, according to Art. 2 (1) MCO, the acquisition of joint control by two or more undertakings over an undertaking that was previously not jointly controlled is a transaction that is subject to a merger control notification if the thresholds are exceeded (cf. question 2.4 below). In order to be a joint venture in this sense, the joint venture company must perform all functions of an economic entity on a lasting basis. In past cases, the authority has, in particular, closely scrutinised whether the joint venture will be dependent on sales to the parent companies, and has held that a joint venture that will supply goods and/or services only to the parent businesses, and that has no presence on the market or dealings with third parties, may not qualify as a full-function joint venture.

Newly formed joint ventures are only subject to merger control if, in addition, some business activities of at least one of the controlling undertakings are included in the joint venture's business (Art. 2 (2) MCO). In practice, this criterion has generally been considered fulfilled in most cases.

For joint control that is part of multiple transactions in succession, please refer to the answer to question 2.8 below. Furthermore, there are specific rules on the jurisdictional thresholds that may be applicable to joint ventures (cf. question 2.7).

2.4 What are the jurisdictional thresholds for the application of merger control?

A transaction that is caught by the definition of the CartA is subject to a notification duty if the following turnover thresholds are met (Art. 9 (1) CartA):

• the undertakings concerned had, in the last business year prior to the transaction, an aggregated worldwide turnover of at least CHF 2,000 million (approximately EUR 2,100 million or USD 2,272 million according to average reference rates published by the Swiss National Bank for 2024: EUR 1 is equal to CHF 0.9525; and USD 1 is equal to CHF 0.8804) or an aggregated turnover in Switzerland of at least CHF 500 million (approximately EUR 525 million or USD 568 million); and
• at least two of the undertakings concerned had, in the last business year prior to the transaction, an individual turnover in Switzerland of at least CHF 100 million (approximately EUR 105 million or USD 114 million).

Furthermore, a transaction must be notified, independent of the turnovers, if the ComCo has previously established in a binding and final decision under the CartA that one of the undertakings concerned has a dominant position in a market in Switzerland, and where the transaction concerns this market, an adjacent market or a market which is either up- or downstream of the dominated market (Art. 9 (4) CartA). There is no official registry for dominant companies. In a decision from 2014, the Swiss Federal Administrative Court restricted the interpretation of the notions of downstream markets and adjacent markets. The scope of application of this notification threshold has, accordingly, been limited; however, it remains in force. Should the dominant undertaking be sold, the obligation to notify any future transactions subject to Art. 9 (4) CartA transfers to the acquirer of the dominant undertaking. The seller is no longer subject to the notification obligation provided that, after the sale of the dominant undertaking, the seller is no longer active in any markets that are affected by the dominant position or that are adjacent to such markets.

In a merger, the turnover of the merging undertakings (Art. 3 (1) (a) MCO), and in an acquisition of control, the turnover of the controlling and controlled undertakings (Art. 3 (1) (b) MCO) must be considered. If only a part of an undertaking is the subject of the concentration, it is that part that constitutes the undertakings concerned and is relevant for the calculation of the turnover (Art. 3 (2) MCO). The turnover is calculated on a consolidated basis, taking into consideration the turnover of the entire group of the undertakings concerned, excluding "internal" turnover (Art. 5 (2) MCO). According to Art. 5 (1) MCO, a group consists of the subsidiaries, the parent companies, the sister companies and joint venture companies. The turnover of a joint venture that is jointly controlled by one of the undertakings concerned is apportioned among those undertakings in equal parts (Art. 5 (3) MCO).

Specific rules for the calculation of the turnover of banks and insurance companies apply. Foreign currencies are to be converted in accordance with generally accepted accounting principles, such as, e.g., on the basis of the Swiss National Bank's published average exchange rates.

The geographic allocation of the turnover is generally based on the customer's location, i.e., the place where the characteristic action under the contract is to be performed. Different rules may apply to services.

2.5 Does merger control apply in the absence of a substantive overlap?

The obligation to notify a transaction does not depend on the existence of any kind of substantive overlap. Insofar as the thresholds under question 2.4 above are fulfilled, a transaction must be notified (cf. the exception which is discussed in question 2.7 below).

2.6 In what circumstances is it likely that transactions between parties outside your jurisdiction ("foreign-toforeign" transactions) would be caught by your merger control legislation? Is there a specific local nexus test or safe harbour?

Any transaction that fulfils the turnover thresholds under question 2.4 above is caught by Swiss merger control legislation and must be notified (cf. the exception, which is discussed in question 2.7) below. In the past, the ComCo has issued fines in cases of "foreign-to-foreign" transactions that were not notified, even though they fulfilled the turnover thresholds (Arts 9 and 51 CartA).

2.7 Please describe any mechanisms whereby the operation of the jurisdictional thresholds may be overridden by other provisions.

Art. 2 (2) CartA indicates that the CartA is only applicable to transactions that have an effect in Switzerland. This has been interpreted in a very restrictive manner by the Federal Supreme Court. According to the Federal Supreme Court's practice, an effect in Switzerland is given whenever the turnover thresholds (cf. question 2.4 above) are met.

However, a notice published by the Swiss competition authority indicates that an exception may be made in the case of the acquisition or creation of a joint venture company that neither has any turnover in Switzerland, nor any current or future business activities in Switzerland. The Swiss competition authority takes the view that such transactions do not have any effect in Switzerland, even if the controlling undertakings fulfil the turnover thresholds. Therefore, such transactions generally do not need to be notified in Switzerland. Each case under this exception should, however, be carefully evaluated. In particular, since the Swiss competition authority has recently noted that the notification exception should be interpreted narrowly and only applies if the activity of the JV clearly has no relation to competition in Switzerland. The circumstances of the individual case are decisive, and in case of doubt whether a merger transaction is notifiable in Switzerland, a notification obligation is to be assumed.

Finally, the ComCo has recently clarified that, if the so-called dominance threshold pursuant to Art. 9 (4) CartA is met (cf. question 2.4 above), even transactions that have no actual or potential effects in Switzerland must be notified to the ComCo.

2.8 Where a merger takes place in stages, what principles are applied in order to identify whether the various stages constitute a single transaction or a series of transactions?

The Swiss competition authority will take into consideration whether several transactions should be considered one single economic transaction. The authority generally assesses this on the basis of the legal interdependence of the transactions and will also take into consideration facts such as a single purchase price, single contractual document, and concurrence of the timing.

For the purposes of calculating the turnover, Art. 4 (3) MCO indicates that if two or more transactions take place between the same undertakings within a period of two years, resulting in the acquisition of control over parts of these undertakings, these transactions shall be treated as a single transaction. Furthermore, the Swiss competition authority's notice confirms that transactions carried out in several steps may be considered a single economic transaction if there is joint control during a start-up period, which is transformed into sole control based on a legally binding agreement. Such transactions may be notified as a single transaction, resulting in the sole control of the ultimate parent company if the start-up period does not exceed one year.

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Originally published by ICLG

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