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28 May 2020
Under Swiss law, a proposed concentration triggers a mandatory pre-merger notification if one of the undertakings concerned has been held to be dominant, irrespective of the statutory turnover thresholds. It was previously unclear whether this criterion had to be met at the time of signing or at the time of closing. The Secretariat of the Swiss Competition Commission (ComCo) has now clarified this question.
Pursuant to Article 9(4) of the Federal Act on Cartels and other Restraints of Competition (CartA), and irrespective of whether the turnover thresholds of Articles 9(1) and 9(3) of CartA have been reached, a proposed concentration must be notified to the Swiss competition authorities if:
In the case at hand, the turnovers of the undertakings concerned in the concentration did not meet all of the thresholds of Article 9(1) of CartA. However, one of the undertakings controlled a subsidiary, which ComCo had found to be dominant on a market relating to the proposed concentration.
This decision on dominance was appealed and was, at the time of signing, pending before the Federal Supreme Court. The timing for passing this judgment was unclear. Hence, the undertakings could not exclude that the Federal Supreme Court would affirm the decision on the dominant position before the closing of the concentration. The question was whether an obligation to notify the concentration would arise in such a case.
Therefore, the undertakings concerned approached the Secretariat of ComCo, which had to clarify whether the decision on the dominant position had to be final and non-appealable at the time of signing or closing of the transaction.
In its advice, the Secretariat of ComCo points out that the legislature intended to create merger notification obligations that undertakings can easily apply. This is also true for the criterion of a final and non-appealable decision on dominance.
If the relevant date to determine an obligation to notify were the date of closing, there would be uncertainty until the day of closing as to whether the concentration triggered a mandatory pre-merger filing. Such uncertainty would undermine the principle of legal certainty.
Further, if the underlying facts of the case at the date of closing were pertinent, this would violate the principle that a notification must occur before closing. By definition, it is impossible to notify a transaction before closing and to base such notification on facts as per the date of such closing.
Finally, the turnover thresholds of Article 9(1) of CartA are based on the annual reports and the turnover information of the previous financial year available at signing.
The facts at the time of signing are relevant in order to determine whether there is an obligation to notify a concentration pursuant to Article 9(4) of CartA. A decision regarding dominance must therefore be final and non-appealable at this time in order to trigger a mandatory pre-merger notification.
By contrast, a final and non-appealable decision on dominance issued between signing and closing does not trigger an obligation to notify a concentration under Swiss competition law.
The advice issued by the Secretariat of ComCo is not legally binding. However, the Secretariat of ComCo would be expected to maintain this legal position in proceedings.
For more information please contact Marcel Meinhardt or Suzan Hacisalihzade at Lenz & Staehelin by telephone (+41 58 450 80 00) or email (firstname.lastname@example.org or email@example.com). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
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