The Takeover Board recently confirmed its case law on whether the obligation to make a public takeover offer may be fulfilled by completing a merger. However, the Takeover Board's arguments were based heavily on the specifics of the case at hand. It seems possible, if not likely, that the Takeover Board would have come to a different conclusion had the merger been structured differently.
Following the widespread outbreak of COVID-19 in Switzerland, the Federal Council implemented several emergency measures to mitigate the virus's economic impact. After weeks of pressure from the growing Swiss start-up ecosystem, the Federal Council acknowledged that start-ups had little or no access to the existing emergency aid and, considering their importance for the economy as a whole, stated that it would devise a liquidity support programme specifically designed for innovative start-ups.
Under Swiss takeover law, the duty to launch a takeover offer is triggered when an acquirer of shares, whether acting directly, indirectly or in concert with third parties, acquires equity securities and thereby, in addition to the equity securities already owned, exceeds the threshold of 33.3% of the voting rights of a listed company. A recent Financial Market Supervisory Authority decision is a helpful reminder that the requirements for exemptions from the offer obligation must be assessed carefully on a case-by-case basis.
In Swiss M&A practice, share deals remain the most common method of acquiring a business from a third party for several reasons. Due to strict Federal Supreme Court precedents, legal due diligence regarding share ownership and related compliance has always been a fundamental component of legal due diligence in Swiss share deals. Recent legislative changes have further increased the importance of thorough due diligence in this regard.
Under Swiss law, the acquisition of a business may be structured as a mere share deal, a mere asset deal or – according to the Merger Act – a statutory merger, demerger or bulk transfer. This article outlines the corporate law aspects of bulk transfers and distinguishes between domestic and cross-border bulk transfers.
The EU Directive on Administrative Cooperation need not be incorporated into Swiss law, but its impact on groups based in Switzerland may be significant. Considering the directive's broad scope, it is crucial that Swiss-based groups identify qualifying intercompany transactions at an early stage and ensure that they comply with the applicable subsidiary reporting obligations in cases with no involvement of EU intermediaries.
In economic life, debt waivers involving associated companies take on central significance in the context of a restructuring. It can be assumed that restructuring will greatly increase in the near future due to the financial difficulties of many companies resulting from the current COVID-19 crisis. Although the tax treatment of a debt waiver granted by an independent third party is essentially well defined (ie, it is recognised in income), many questions will arise if debt is waived by a related party – namely, a shareholder.
Due to the COVID-19 pandemic, a number of tax return deadlines have been extended for legal entities; however, numerous questions concerning corporate tax requirements for the 2019 and 2020 fiscal years and contentious legal proceedings in tax matters remain. This article examines some of the most salient questions in this regard.
Foreign companies can now take advantage of a tax-neutral step-up of built-in gains (including self-created goodwill) to fair market value for Swiss direct tax purposes when relocating their legal seat, effective place of management or assets, business units and functions to Switzerland from overseas. The disclosed built-in gains may be depreciated tax-effectively over a specified time period, allowing the Swiss company or branch to reduce its tax burden significantly during the respective timeframe.
The Organisation for Economic Cooperation and Development recently released a statement update on a new international framework to allocate part of the profits of multinational enterprises with a substantial digital business footprint in countries in which they have a large user base, but no physical presence. Switzerland has stated that it will maintain its support for the development of a multilateral solution for taxing the digital economy to avoid unilateral actions that jeopardise growth and innovation.
The European Court of Human Rights (ECtHR) recently found Switzerland in breach of the European Convention on Human Rights for ordering the return to Afghanistan of an asylum seeker who had, according to the Swiss authorities, converted to Christianity after arriving in Switzerland. The ECtHR confirmed that being forced to conceal a personal conviction or a characteristic inextricably linked to an individual's personality may lead to the recognition of refugee status.
The Agreement on Admission to the Labour Market for a Temporary Transitional Period following the Withdrawal of the United Kingdom from the European Union and the Free Movement of Persons will provide facilitated access to the labour market for British nationals in Switzerland and for Swiss nationals in the United Kingdom after Brexit. The agreement will serve as a transition regime in the event of a no-deal Brexit and would be entered into for a limited period until 31 December 2020.
The Swiss Competition Commission recently fined two local energy suppliers for abuse of a dominant position in the natural gas market. The suppliers' refusal to grant third parties access to their pipeline grids was qualified as an unlawful refusal to deal. This decision has already had an impact, as electricity suppliers have begun to enter the natural gas market.
The Swiss Competition Commission (ComCo) recently reviewed whether Energie Wasser Luzern Holding AG and Erdgas Zentralschweiz AG had a dominant position in the natural gas market and whether their refusal to grant grid access qualified as an unlawful refusal to deal. The undertakings ultimately concluded a consensual settlement with ComCo which – combined with the future Gas Supply Act – will likely improve competition in the gas supply market.
A consultation on the revised Electricity Supply Act has shown that a majority of people support a full market opening, but that more incentives for investment in domestic renewable energies and planning security are desired. The amendments envisaged by the Federal Council will enable Switzerland to increase electricity production from renewable energies, better integrate such electricity into the electricity market and strengthen its supply security.
This article provides a non-exhaustive analysis of the legal situation regarding trading with natural resources in Switzerland, with a primary focus on new regulations and reference to foreign financial institutions. At the beginning of 2020, a new regulation came into force which also affected trading with natural resources. In general, trading in physical commodities does not require a licence, whereas trading in securities or derivatives on a commercial basis is subject to licensing requirements.
The government recently confirmed its proposal to fully liberalise the Swiss electricity market. This liberalisation will be accompanied by measures which strengthen domestic renewable energies and improve supply security. It is now up to the Federal Department of the Environment, Transport, Energy and Communications to submit a discussion paper to the government setting out the key parameters for such liberalisation and additional adjustments to be made to the Electricity Supply Act.
The Federal Department of the Environment, Transport, Energy and Communication recently launched the consultation process for a partial revision of the CO2 Ordinance. Amendments to the ordinance are necessary to extend certain climate protection measures until the end of 2021, as recently decided by Parliament.
This article summarises key amendments to Swiss environmental laws which either came into effect in recent months or will come into effect in the foreseeable future. Recent developments in this area concern, among other things, CO2 emissions, waste and recycling, contaminated site and soil protection, genetic engineering and new statutory limitation periods.
In 2016 the so-called 'Responsible Business Initiative' was submitted to the Swiss Federal Chancellery. A key element of the initiative is the introduction of a legal obligation on Swiss-based multinationals to respect international environmental standards in all of their business activities worldwide. As the popular vote on the initiative is expected to take place in February 2020, Swiss-based companies should analyse whether they may be affected and, if so, determine appropriate implementation measures.
This article summarises key amendments to Swiss environmental laws which either came into effect in recent months or will come into effect in the foreseeable future. Recent developments in this area affect, among other things, plant and water protection, chemicals, non-ionising radiation, energy and CO2 reduction.
While the Federal Act on the Reduction of CO2 Emissions (CO2 Act) has had some success in reducing CO2 emissions, the average CO2 emissions of passenger cars have increased in recent years. As the existing law cannot sufficiently meet the ambitious goals of the Paris Convention, Parliament should agree on a revised CO2 Act that can provide for appropriate instruments to reach these goals.