Switzerland, Lenz & Staehelin updates

Competition & Antitrust

Contributed by Lenz & Staehelin
Secretariat of Competition Commission advises on merger filing obligation based on dominant market position
  • Switzerland
  • 30 May 2019

Under the Cartel Act, a merger filing is generally required when the relevant turnover thresholds pursuant to Article 9(1) of the act are met. However, in addition to these thresholds, the act provides for a filing obligation based on a dominant market position. As a result of legal uncertainty, a leading media group recently asked the Secretariat of the Competition Commission whether its intended acquisition of a small media agency would trigger a merger filing obligation even if the turnover thresholds were clearly not met.

Redaction of personal data in reports published by Swiss Competition Commission
  • Switzerland
  • 09 May 2019

The Federal Administrative Court (FAC) recently confirmed that the Swiss Competition Commission's decision to publish the contents of a preliminary investigation's final report must comply with the Federal Act on Data Protection and the Cartel Act. In the case at hand, the FAC held that the public interest in publishing largely prevailed over the private interest of an undertaking in maintaining its good reputation.

Federal Administrative Court rules on right to silence in competition investigations
  • Switzerland
  • 14 March 2019

In a recent bid-rigging investigation, the Federal Administrative Court held that assessing the procedural role of a witness or company representative must be based on the circumstances at the time of the interrogation. The court found that interrogation of a witness is permissible only if it concerns purely factual information that could have no direct incriminating effect on the complainant with regard to a possible violation of competition law.

Secretariat of Swiss Competition Commission advises on changes in shareholder structure of joint venture
  • Switzerland
  • 14 February 2019

The Secretariat of the Swiss Competition Commission recently issued advice in respect of Article 23(2) of the Cartel Act to two shareholders in a jointly controlled joint venture. The advice clarifies that joint control is given when the parent companies must agree on all important matters relating to the joint venture. Where several parent companies have unequal stakes in a company, minority shareholders must have a right to veto decisions that are essential to the strategic commercial behaviour of the joint venture.


Immigration

Contributed by Lenz & Staehelin
Stricter language skill requirements for foreign nationals
  • Switzerland
  • 07 June 2019

The Foreign Nationals Act has been renamed the Foreign Nationals and Integration Act, with effect from 1 January 2019. The Foreign Nationals and Integration Act has revised the earlier provisions and introduced new ones to encourage and support foreign nationals' integration into Switzerland. Further, the act now includes provisions relating to the integration of non-EU nationals in Switzerland.

Post-Brexit free movement of persons between United Kingdom and Switzerland
  • Switzerland
  • 22 February 2019

In the event of a no-deal Brexit, British nationals who take up residence in Switzerland after 29 March 2019 would not benefit from any rights of protections currently granted under the Agreement on the Free Movement of Persons and would thus be considered non-EU nationals. Under Switzerland's ordinary immigration regime, non-EU nationals generally have no right to obtain a Swiss residence and work permit, and Swiss immigration authorities have wide discretionary power when reviewing permit applications.


Litigation

Contributed by Lenz & Staehelin
Precautionary taking of evidence in support of current proceedings
  • Switzerland
  • 19 February 2019

Under the Civil Procedure Code, the Swiss courts usually take evidence only after the parties have fully pleaded all particulars. The taking of evidence is often preceded by multiple exchanges of written submissions; however, in certain cases, it may be unreasonable to wait until the proceedings have fully developed to take certain evidence. For such cases, Swiss law allows parties to request the so-called 'precautionary taking of evidence'. The Zurich Commercial Court recently issued a decision on one such request.

Forum running through action for negative declaratory judgment now admissible in Switzerland
  • Switzerland
  • 05 June 2018

According to a new Federal Supreme Court decision, securing an advantageous place of jurisdiction in Switzerland (so-called 'forum running') in an international dispute is of sufficient interest for an action seeking a negative declaratory judgment. This new precedent enables parties domiciled in Switzerland to anticipate foreign proceedings initiated by a counterparty by filing an action for a negative declaratory judgment to drag the case before a court in Switzerland.

Federal Supreme Court rules on when restitution duty arises and on its prescription
  • Switzerland
  • 15 August 2017

The Federal Supreme Court recently ruled on at which point the statute of limitation starts to run and what its duration should be. It found that the statute of limitation applicable to the claim for restitution was 10 years and that it started to run on the receipt of each payment by the agent. The issue of statutory interest remained undecided, but now appears much less controversial

Leading case on criminal liability of corporations for money laundering
  • Switzerland
  • 13 December 2016

The Federal Supreme Court recently clarified that the criminal liability of enterprises is not a strict liability, but rather requires proof of a criminal offence in each case. The decision defines the limits of criminal law applicable to enterprises, particularly in respect of money laundering, and clarifies that the genuine or cumulative criminal liability of enterprises is not a strict liability for organisational deficiencies.

Federal Supreme Court decides on tax deductibility of fines
  • Switzerland
  • 29 November 2016

The Federal Supreme Court has ruled that fines and other penalties of a criminal nature are not tax deductible for legal entities, as they are not deemed to be business-related expenses. Tax deductibility is granted only insofar as penalties aim at disgorging illegally obtained profits. For income tax purposes, it is essential to distinguish fines of a penal nature from those which aim to disgorge illegally obtained profits. However, the court provided no specific guidance on how to distinguish one from the other.


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