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Swiss Merger Control – the Newest Developments

July 2008

The threshold above which mergers have to be notified (formal criterion) is considered to be relatively high in comparison to international standards. Therefore, the Swiss Competition Commission can examine relatively few mergers in the framework of preventive merger control as provided for in the Federal Act on Cartels (ACart). The recent practice of the Swiss Federal Supreme Court, in the merger cases Swissgrid and Berner Zeitung AG, Tamedia AG/20 Minuten (Schweiz) AG, reveals that even substantive law calls for a very high intervention threshold. The mere possibility of the merger creating or strengthening a dominant position is not sufficient for an intervention. The merger must also eliminate effective competition. Thus Switzerland is taking a different approach to that of the European Union. In EC competition law, the intervention threshold was reduced, so that for intervention in a merger considerable impediment of effective competition is now sufficient. Furthermore, the Swiss Competition Commission recently had to decide on mergers taking place on the retail market. This gave the Commission an opportunity to further define and develop its position on collective dominance.

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