Merger control in Switzerland is governed by the Federal Act on Cartels and Other Restrictions of Competition (ACart) and the Merger Control Ordinance (MCO). These competition regulations came into force on 1 July 1996 and were first revised in 2003.
Concentrations are assessed by the Competition Commission,2 an independent federal authority based in Bern that consists of up to 15 members. There are currently 12 members who were nominated by the federal government, the majority of which are independent experts (i.e., law and economics professors). Deputies of business associations and consumer organisations take the other seats. Cases are prepared and processed by the Secretariat of the Competition Commission (with a staff of 76 employees at the end of 2015 (full-time and part-time), mostly lawyers and economists), divided into four departments: product markets, services, infrastructure and construction.
The types of transactions that are subject to merger control are mergers of previously independent undertakings; and direct or indirect acquisitions of control by one or more undertakings over one or more previously independent undertakings, or parts thereof. Joint ventures are also subject to merger control if the joint venture company exercises all the functions of an independent business entity on a lasting basis; if a joint venture company is newly established, it is subject to merger control if, in addition to the above criteria, the business activities of at least one of the controlling shareholders are transferred to it.
Pursuant to Article 9 ACart, pre-merger notification and approval are required if two turnover thresholds are reached cumulatively in the last business year prior to the concentration:
- a the undertakings concerned must have reported a worldwide aggregate turnover of at least 2 billion Swiss francs or a Swiss aggregate turnover of at least 500 million Swiss francs; and
- b at least two of the undertakings concerned must have reported individual turnovers in Switzerland of at least 100 million Swiss francs.
These thresholds are considered to be relatively high in comparison with international standards. Alternatively, a particularity of the Swiss regime is that if the Competition Commission has previously issued a legally binding decision stating that an undertaking holds a dominant position in a particular market, such undertaking will have to notify all its concentrations, regardless of the turnover thresholds, provided that the concentration concerns that particular market or an upstream, downstream or neighbouring market. According to Article 4(2) ACart, an undertaking is considered to hold a dominant position if it is ‘able, as regards supply and demand, to behave in a substantially independent manner with regard to the other participants in the market (competitors, suppliers, buyers)’.
If the thresholds are met, or in the case of a dominant undertaking as explained above, the concentration must be notified to the Competition Commission prior to its completion. If a transaction is implemented without notification or before clearance by the Competition Commission (or if the remedies imposed are not fulfilled), the companies involved may be fined up to 1 million Swiss francs. Members of the management may also be fined up to 20,000 Swiss francs. So far, the Competition Commission has imposed several fines on companies for failure to notify, but there has been no criminal sanction of members of management. Furthermore, the Competition Commission may order the parties to reinstate effective competition by, for instance, unwinding the transaction.
The ACart does not stipulate any exemptions to the notification requirements. However if the Competition Commission has prohibited a concentration, the parties may in exceptional cases seek approval from the federal government if it can be demonstrated that the concentration is necessary for compelling public interest reasons. Such approval has, however, not been granted so far.
Specific rules apply to certain sectors. Thus, a concentration in the banking sector may be subject to a review by the Swiss Financial Market Supervisory Authority, which may take over a case involving banking institutions subject to the Federal Law on Banks and Saving Banks, and authorise or refuse a concentration for reasons of creditor protection, irrespective of the competition issues. If the parties involved in a concentration hold special concessions (e.g., radio, television, telecommunications, rail, air transport), a special authorisation by the sector-specific regulator may be required. Moreover, under the Federal Law on the Acquisition of Real Estate by Foreign Persons, for any concentration involving a foreign undertaking and a Swiss real estate company holding a portfolio of residential properties in Switzerland, the approval of the competent cantonal or local authorities may also be necessary.
The Swiss merger control regime features a very high standard of assessment compared with other jurisdictions, which is sometimes called the ‘dominance-plus test’. Pursuant to Article 10 ACart, the Competition Commission must prohibit a concentration or authorise it subject to conditions and obligations if the investigation indicates that the concentration:
- a creates or strengthens a dominant position;
- b is capable of eliminating effective competition; and
- c causes harmful effects that cannot be outweighed by any improvement in competition in another market.
In two decisions issued in 2007, Swissgrid and Berner Zeitung AG/20 Minuten (Schweitz) AG, the Swiss Supreme Court had to determine whether a concentration could be prohibited if there was a mere creation or strengthening of a dominant position or whether conditions (a) and (b) (i.e., creation or strengthening of a dominant position and elimination of effective competition) were cumulative. This question has significant practical consequences, because if the two conditions are cumulative, then a concentration may be authorised even if a dominant position is created or strengthened if it cannot be established that the concentration will eliminate effective competition. In the Swissgrid case, seven Swiss electricity companies wanted to integrate their electricity-carrying network under a common company. The Swiss Supreme Court held that conditions (a) and (b) were cumulative. The reasoning followed by the Supreme Court was that merger control is part of the control of market structure. Therefore, to justify an administrative intervention, the concentration must result in a concrete negative change in the market structure and the competition must be altered. In this case, the Court found that competition did not exist prior to the concentration. Accordingly, the concentration would not change the market conditions and the administrative intervention was not justified. In more recent cases (notably the Tamedia/PPSR (Edipresse) case), the Competition Commission examined whether the concentration could eliminate effective competition, but in a way that might indicate that it is in fact reluctant to give an autonomous scope to that criterion. In practice, the efficiency gains provided in condition (c) have so far played no role.
II YEAR IN REVIEW
In 2015, the numbers of merger notifications remained stable, with 29 notifications of concentrations being filed to the Competition Commission (there were 30 notifications of concentrations in the previous year). Twenty-six cases were cleared after a preliminary investigation. Three in-depth investigations (Phase II) were launched. No decision was rendered during the year.
In the telecommunications sector, the Competition Commission assessed the merger between Swisscom Directories AG and Search.ch AG. In this case, Swisscom and Tamedia, following the takeover of Publigroupe SA, planned to merge its subsidiaries local.ch and search.ch into a joint subsidiary undertaking. The Competition Commission’s preliminary investigation at the end of November 2014 revealed that the merger might establish or increase a dominant position in relation to address directories. Accordingly, and under Article 10 of the Cartel Act, the planned merger was the subject of an investigation that was completed in March 2015. Although the Competition Commission arrived at the conclusion that this merger would result in the creation of a dominant position on the directories market, it found that such dominant position was not capable of eliminating effective competition. In this sector, the Competition Commission also had to assess the joint venture between Swisscom, SRG and Ringier. In addition to expanding cooperation in marketing online, TV, print and radio advertising, the relevant undertakings planned to introduce television advertising targeting specific groups in Switzerland via Swisscom TV. Although the Competition Commission expects that the joint venture will become one of the strongest market participants in the advertising marketing business, given the existing level of competition in advertising in the TV, online, radio and print sectors and the uncertainty as to how the market for targeted TV advertising will develop, the Competition Commission was unable to prove that effective competition could be eliminated. Accordingly, the statutory requirements for prohibiting the merger or for imposing specific condition were not met and the planned merger was approved in December 2015.
The Competition Commission was also called on to assess several company mergers in the media sector. The Competition Commission subjected the purchase of Ricardo by Tamedia and the takeover of JobScout24 by JobCloud to a detailed examination, approving the two mergers in August 2015. The Competition Commission concluded that in both cases Tamedia and JobCloud held a dominant position in the market for placing job advertisements. However, as there was no prospect that effective competition would be eliminated by either takeover, the statutory requirements for the Competition Commission to intervene were not met. In the media sector, the Competition Commission was also called to assess the following mergers, which were all approved following a preliminary assessment:
- a in Alex Springer Switzerland/Ringier, Axel Springer Switzerland and Ringier announced the intention to combine their Swiss magazine business, the Axel Springer online activities, its stake in Presse TV AG and Ringier’s state in Le Temps SA in a joint venture;
- b in Tamedia AG/Swiss Classified Media AG, Tamedia planned to acquire the remaining 50 per cent of the shares in Schibsted and thus obtain exclusive control of Swiss Classified Media, which operates the small ads webside tutti.ch and the car sales website car4you.ch;
- c in Publicitas/xentive, Publicitas announced the acquisition of exclusive control of the media logistics service provider xentive;
- d in Tamedia/Tradono Denmark/Tradono Switzerland, Tamedia and Tradono Denmark, which runs an online forum for small ads in Denmark that primarily caters for users with moveable terminals (smartphones, tablets), planned to set up the joint venture Tradono Switzerland AG; and
- e in Tamedia/ImmoStreet, Tamedia announced the acquisition of exclusive control of ImmoStreet.
In the district heating business, the Competition Commission assessed the merger between Groupe E and Celsius SA. Groupe E, the city and canton of Fribourg and further smaller stakeholders intended to set up the joint venture Celsius SA in several stages in order to be able to offer renewable energies (district heating) in anticipation of the Energy Strategy 2015. Following a preliminary assessment, the Competition Commission approved the plan.
III THE MERGER CONTROL REGIME
If the turnover thresholds are reached by the undertakings concerned or if the concentration involves a company holding an established dominant position (see Section I, supra), the filing of a merger notification is mandatory prior to the completion of the transaction. Under Swiss law, there are no deadlines for filing. A transaction can be notified prior to the signing of the final agreements. However, the parties must demonstrate a good faith intention to enter into a binding agreement and to complete the transaction (in practice, the standard is similar to that of the European Commission). The Secretariat of the Competition Commission can be contacted on an informal basis before the notification. This can speed up the notification procedure (for example, the Secretariat can agree to waive some legal requirements in relation to the content of the notification).
In the case of mergers, the notification must be made jointly by the merging undertakings. If the transaction is an acquisition of control, the undertaking acquiring control is responsible for the filing. The filing fee for a Phase I investigation is a lump sum of 5,000 Swiss francs (but the Secretariat of the Competition Commission announced in 2015 that if the assessment of incomplete draft notifications involves a large amount of work, in future the Secretariat would invoice this work as chargeable advisory activity). In Phase II investigations, the Secretariat of the Competition Commission charges an hourly rate of 100 to 400 Swiss francs.
Once the notification form has been filed, if the Competition Commission considers that the filing was complete on the date of the filing, it will conduct a preliminary investigation and will have to decide within one month whether there is a need to open an in-depth investigation. If the Competition Commission decides to launch an in-depth investigation, it will have to complete it within four months. As regards the internal organisation, under its rules of procedure (revised in 2015) the Competition Commission has created a Chamber for mergers, which has been granted the power to decide whether a detailed examination (Phase II) should be started and whether the merger can be implemented ahead of the normal schedule. However, the Competition Commission retains a certain residual power in the preliminary assessment, in that it will be informed of the Chamber’s decision and may conduct an examination independent of the Chamber (and, as the case may be, overrule the Chamber’s decision). The Commission can also delegate other tasks to the Chamber if practical considerations indicate that this is appropriate.
As a rule, the closing of a transaction should not take place prior to the competition authorities’ clearance. However, in specific cases, the authorities may allow a closing prior to clearance, for important reasons. This exception has been mainly used in cases of failing companies and, more recently, in the case of a pending public takeover bid. Contrary to the European merger control rules (Article 7, paragraph 2 of Council Regulation (EC) No. 139/2004), no exception for public bids is provided under Swiss law. Therefore, each case will be assessed individually. In the Schaeffler/Continental case (where Schaeffler and Continental eventually agreed on the conditions of a public takeover), the Competition Commission decided that a request for an early implementation of a concentration can be granted before the notification is submitted if three conditions are fulfilled:
- a the Competition Commission must be informed adequately about the concentration;
- b specific reasons must be given on why the notification cannot be submitted yet; and
- c whether the transaction can be unwound must be assessed in the event that the concentration is not allowed by the Competition Commission after its review.
In that case, these conditions were fulfilled. However, the Competition Commission imposed two additional conditions: the obligation not to exercise the voting rights except to conserve the full value of the investment, and the obligation to submit a full notification within a relatively short period of time.
In practice, the one-month period for the Phase I investigation can be shortened in less complex filings, especially if a draft filing was submitted to the Competition Commission for review prior to the formal notification.
If the Competition Commission decides to launch a Phase II investigation, it will publish this decision. It will then send questionnaires to the parties, as well as their competitors, suppliers and clients. Usually, a Phase II hearing with the parties takes place. If the parties propose remedies, close contact is established between the Secretariat and the undertakings involved to determine the scope. Ultimately, however, the authority to impose remedies lies with the Competition Commission, which enjoys a wide power of discretion (subject to compliance with the principle of proportionality).
Third parties have no formal procedural rights at any point in the procedure. If the Competition Commission opens a Phase II procedure, it will publish basic information about the concentration and allow third parties to state their position in writing within a certain deadline. The Competition Commission is not bound by third-party opinions, or by answers to questionnaires. Third parties have no access to documents and no right to be heard. Moreover, the Swiss Supreme Court has held that third parties are not entitled to any remedy against a decision of the Competition Commission to permit or prohibit a concentration.
A decision of the competition authority may be appealed within 30 days to the Federal Administrative Tribunal and ultimately to the Swiss Supreme Court. The duration of an appeal procedure varies, but may well exceed one year at each stage.
In September 2014, the Competition Commission published an updated version of its communication dated 25 March 2009 regarding merger control (Merger Control Communication).
The Merger Control Communication first clarifies the concept of ‘effect’ in the Swiss market in the case of a joint venture. Article 2 of the ACart provides that the Act ‘applies to practices that have an effect in Switzerland’. Until the Merger Control Communication, the Competition Commission and the Swiss courts held that if the turnover thresholds of Article 9 ACart were reached, it should always be considered that there was an effect in the Swiss market. Thus, in the case of the creation of a joint venture with no activity in Switzerland but where the turnover thresholds were met by the parent companies, a notification was required (see, e.g., the Merial decision of the Swiss Supreme Court of 24 April 2001). However, in the Merger Control Communication, the Competition Commission takes a different approach: if the joint venture is not active in Switzerland (no activity or turnover in Switzerland – in particular no deliveries in Switzerland) and does not plan to be active in Switzerland in the future, then the creation of this joint venture does not have any effect in Switzerland and accordingly no notification is required, even if the turnover thresholds are met by the parent companies. In the Axel Springer/Ringier case (dated May 2010), Ringier AG and Axel Springer AG formed a joint venture in Switzerland, in which they concentrated all the printed and electronic media activities they had in eastern European countries. In light of the criteria set out in the Merger Control Communication, the Competition Commission took the view that the joint venture was subject to Swiss merger control, since some of the entities concentrated in it had achieved a turnover in Switzerland in the year preceding the concentration, while others had made deliveries in Switzerland.
The second jurisdictional issue dealt with by the Merger Control Communication generalises the position taken by the Competition Commission in its Tamedia/PPSR (Edipresse) decision dated 17 September 2009. In this case, the deal was structured into three phases over a period of three years, with a shift from joint to sole control by Tamedia over that period. The Competition Commission decided that the deal could be regarded as a single concentration only if the three following conditions were met:
- a constitution of a joint control during a transition period;
- b a shift from joint control to sole control concluded in a binding agreement; and
- c a maximum transition period of one year.
Until that decision, the Competition Commission considered that a transition period of up to three years was acceptable to analyse a case as a single concentration. However, to align its practice with that of the European Commission in its Jurisdictional Notice of 10 July 2007, the Competition Commission decided to reduce the transition period to one year.
The Merger Control Communication also addresses the subject of the geographic allocation of turnovers. In general, the test for the geographic allocation of the turnover is the contractual delivery place of a product (place of performance) and the place where the competition with other alternative suppliers takes place respectively. The billing address is not relevant. Special rules apply to the calculation of turnovers based on the provision of services.
The Merger Control Communication also clarifies the examination criteria and the notification requirements for markets affected by concentrations in which only one of the participants operates with a market share of 30 per cent or more. The issue is the extent to which the other companies involved in the concentration may be categorised as potential competitors. According to the Competition Commission’s practice, a planned takeover leads to the exclusion of potential competitors if an undertaking involved plans to enter the problematic market or if it has pursued this objective in the past two years (e.g., the development of competing medicines that has entered an advanced phase may be interpreted as the intention to enter a new market). An exclusion of potential competitors is also possible if an undertaking involved holds important intellectual property rights in this market, even where it is not active in the market concerned. Special attention must be given to cases in which another undertaking involved is already active in an upstream or downstream product market or in a neighbouring market closely linked with the product market in which the relevant undertaking holds a market share of at least 30 per cent.
IV OTHER STRATEGIC CONSIDERATIONS
The Competition Commission maintains close links with the European Commission. It accepts that, in cases where a notification has also been filed with the European Commission, the parties provide the Form CO filing, annexed to the Swiss notification for reference. This reduces the workload for the drafting of the Swiss notification, as the parties therefore only have to add specific data regarding the Swiss market. That said, while annexes to the Swiss notification may be provided in English, the main part of the notification must be drafted in one of the Swiss official languages (French, German or Italian).
The Competition Commission aims to give decisions coherent with that of the European Commission if a case has been notified both in Brussels and in Bern. To ensure compatible decision-making, it is advisable for the parties to provide a waiver that allows the Competition Commission to liaise directly with the European Commission.
More generally, the report of the Taskforce Cartel Act presented in January 2009 (see Section V, infra) states that in the context of growing globalisation, it would be appropriate for Switzerland to conclude cooperation agreements with its main trading partners to make possible the exchange of confidential information between competition authorities. On 17 May 2013, the government signed an agreement between the Swiss Confederation and the European Union concerning cooperation on the application of their competition laws (Agreement). In essence, the Agreement regulates cooperation between the Swiss and European competition authorities. It is a purely procedural agreement and does not provide for any substantive harmonisation of competition laws. The two competition authorities shall notify each other in writing of enforcement activities that could affect the important interests of the other contracting party. A list is given of examples of cases in which notification must be given, and the time for notifications in relation to mergers and other cases is also set out (Article 3, paragraphs 3 and 4). Furthermore, the Agreement creates the legal basis for the competition authorities to be able to coordinate their enforcement activities with regard to related matters. The Agreement entered into force on 1 December 2014.
The Competition Act does not contain any specific rules regarding public takeover bids. The Competition Commission should be contacted in advance so that it can coordinate its course of action with the Swiss Takeover Board. This is particularly important for hostile bids. Past practice has shown that in most cases the Competition Commission substantially follows the rules of the EU Merger Control Regulation on public takeover bids. In addition, it is possible to request provisional completion specifically in public takeover bids.
V OUTLOOK and CONCLUSIONS
On 14 January 2009, the federal government was presented with a synthesis report issued by the Taskforce Cartel Act, a panel formed in 2006/2007 by the Head of the Federal Department of Economic Affairs to evaluate the ongoing effects and functioning of the ACart. Article 59a of the ACart requires the federal government to evaluate the efficiency and conformity of any proposed measure under the Act before submitting a report and recommendation to Parliament in relation to such measure. As regards concentrations, the Taskforce Cartel Act takes the view that, compared with other countries, the Swiss system, which only prohibits concentrations that can eliminate effective competition, is deficient and provides a relatively weak arsenal to enhance competition effectively. According to the experts, a risk exists that concentrations adversely impacting competition might be approved. They recommend a harmonisation of the Swiss merger control system with the EU merger control system to eliminate that risk and to reduce the administrative workload with respect to transnational concentrations, as well as the implementation of modern instruments to control the criteria governing intervention in the case of concentrations (the SIEC test, efficiency defence and dynamic consumer welfare standard).
On 30 June 2010, the federal government published a set of draft amendments to the ACart for public consultation. The government proposed, inter alia, to replace the currently applied ‘dominance-plus test’ either with a simple dominance test (whereby the criterion of a possible elimination of competition would be dropped) or with an SIEC test analogous to EU law. As regards notification obligations, the government proposed maintaining the existing turnover thresholds, but suggested a new exception to eliminate duplicate proceedings where every relevant market geographically extends over Switzerland plus at least the European Economic Area and the concentration is being appraised by the European Commission.
Based on the results of the consultation procedure, on 22 February 2012 the federal government released a dispatch to Parliament on the revision of the ACart together with a set of draft amendments. Regarding merger control, the draft amendments confirmed the willingness of the federal government to change the assessment criteria for the merger control procedure (introduction of the SIEC test) combined with a relaxation of regulations on undertakings in the case of concentrations with defined international markets and in relation to deadlines (harmonisation with conditions in the EU). Additional changes in the merger regime included more flexible review periods. The present review periods in Switzerland are one month for Phase I and an additional four months for Phase II (see Section III, supra). The reform would have introduced the possibility to extend the review period in Phase I by 21 days and in Phase II by two months. Such extension would have to be agreed between the authorities and the undertakings concerned. Finally, the reform would have included a waiver of the notification obligation in the case of a concentration where all relevant geographic markets would comprise at least the EEA plus Switzerland and the concentration is assessed by the European Commission. In such cases, the filing of a copy of Form CE with the Swiss authorities for information purposes but without review would be have been sufficient.
In the parliamentary debate, the Council of States approved the Federal Council draft for the revision of the Cartel Act at its first reading in March 2013, subject to various amendments. However, the National Council at its first reading in March 2014 decided not to consider the revision. After the Council of States adhered to its decision in June 2014, but the National Council again decided not to consider the revision in its second reading in September 2014, the final outcome is that the Cartel Act will not be revised.
According to the Competition Commission, rejection of the revised Cartel Act without even considering it is a missed opportunity to meet the need for reform highlighted in the evaluation. It also means that several changes proposed by the Council of States, including changes to the merger control procedure, are no longer on the table.
In the course of 2014 and 2015, individual parliamentary proposals were submitted with the aim of revising specific points in the Cartel Act. The parliamentary examination process and the drafting of possible new legislation are currently ongoing. The State Secretariat for Economic Affairs has overall responsibility for these proposals within the administration; the Secretariat of the Competition Commission is involved in the work.