M&A deals in Switzerland are regulated by the Competition Act & overseen by ComCo. Initiating a transaction requires submitting the necessary documents & signing relevant agreements. Failure to file a notification entails a fine of up to one million Swiss francs. A company’s senior management may also have to pay a fine of up to twenty thousand Swiss francs if:
- a notification wasn’t sent deliberately or due to negligence;
- companies involved in a transaction have a special value measured by their turnover in Switzerland;
- a transaction poses a threat to competition;
Purchasing a Swiss enterprise requires purchasers to register a company that has acquired control.They must also appoint no less than 1 representative with ComCo.
Tentatively, the pre-merger period can be divided into 3 stages:
- a 1-month wait period (during which a temporary ban is issued);
- an investigation launched by ComCo;
- a notification sent by ComCo (if no notification is sent within 30 days, a deal is deemed authorized).
A temporary ban isn’t applicable if ComCo sends a notification about approving a deal before expiration of a 1-month wait period. After that, M&A of Swiss companies can go ahead as planned. Failure to comply with a temporary ban may entail a fine of up to one million Swiss francs.
Switzerland: Initiating a Public Takeover
There’s no specific rules regarding public takeovers in Switzerland. Those seeking to conclude an M&A deal in Switzerland will have to provide ComCo with:
- a company’s name, registered office & business activities of participants;
- M&A details, including its objectives;
- participants’ turnover;
- relevant product, geographic markets, competitors & market shares;
- market entrances over the past 60 months;
- participants’ financial statements;
- M&A agreements.
Those planning on initiating an M&A transaction in Switzerland via a public tender must provide copies of reports & business plans made in connection with a transaction. The documents can be submitted in any of the 3 official languages, while supporting documents can also be submitted in English. M&A of foreign companies in Switzerland that have no significant impact on the Swiss market but meet the threshold requirements, can be carried out under a simplified procedure.
Criteria for Approval of M&A Deals in Switzerland
To assess M&A deals, ComCo applies the CSDP test. A deal will be allowed if one of the following criteria is met:
- an M&A deal doesn’t result in eliminating competition in a particular market;
- an M&A results in intensification of competition due to the strengthening of participants’ position in a particular market.
Concluding a bank merger in Switzerland requires getting FINMA’s approval. Selling assets of Swiss companies requires getting ComCo’s approval. Such transactions must be completed within a certain period.
ComCo's final decision to permit or prohibit the merger is published in the Official Federal Journal & Official Commercial Gazette. There’s no specific rules regarding protection of trade secrets. Parties to a merger in Switzerland are encouraged to disclose confidential business information & notify ComCo. In its turn, ComCo mustn’t disclose any trade secrets.
Conducting an M&A Transaction in Switzerland: Appeals
Appealing a ComCo's decision requires filing an appeal with an administrative court. Normally, procedures like these can take more than 12 months. Decisions rendered by administrative courts can be appealed with the Supreme Court (normally, a review procedure takes no more than 12 months).
Seeking to conclude an M&A deal in Switzerland? Need advice on M&A regulation in Switzerland? Why not contact IQ Decision UK?