Switzerland
Answer ... The Swiss Takeover Board ensures compliance with the rules on public takeover offers and is therefore relevant for public-to-private transactions. Its decisions may be appealed to the Financial Market Supervisory Authority (FINMA) and ultimately with the Swiss Federal Administrative Court. FINMA is also the supervisory authority with wide-ranging powers for other regulatory matters relevant in the private equity context, such as the rules on market conduct and the establishment of and fundraising by private equity funds or sponsors in Switzerland. Further, transactions involving targets holding a FINMA licence may be subject to FINMA approval. The Swiss Competition Commission, an independent federal authority, is responsible for enforcing the Swiss merger control rules. Merger control filings are triggered if:
- the enterprises involved together have a turnover of at least CHF 2 billion or a turnover in Switzerland of at least CHF 500 million; and
- at least two of the enterprises involved have a reported turnover in Switzerland of at least CHF 100 million.
The Competition Commission may prohibit a merger or approve it subject to conditions if the transaction creates or strengthens a dominant position capable of eliminating effective competition and does not improve the conditions of competition in another market such that the negative effects of the dominant position can be outweighed.
Switzerland
Answer ... The obligation to make a public tender offer for all listed shares applies to anybody that, directly, indirectly or acting in concert with third parties, acquires equity securities which, added to the equity securities already owned, exceed the threshold of 33.33% of the voting rights of a listed Swiss company, irrespective of whether the voting rights may be exercised or not. Listed companies may provide in their articles of incorporation that the threshold for such obligation is set at 49% of the voting rights (opting up) or even exclude shareholders from the duty to make a mandatory tender offer (opting out).
Further, a person that, directly or indirectly or acting in concert with third parties, acquires or disposes of shares or acquisition or sale rights relating to shares of a company listed in Switzerland and thereby reaches, falls below or exceeds the thresholds of 3%, 5%, 10%, 15%, 20%, 25%, 33.33%, 50% or 66.66% of the voting rights, whether exercisable or not, must notify this to the company and to the stock exchanges on which the equity securities are listed (obligation to disclose significant shareholders).
For transactions triggering a Swiss merger control filing, clearance is given by the Competition Commission within one month of submission of the complete notification (Phase I), unless the Competition Commission decides to subject the transaction to a four-month in-depth investigation (Phase II). Because only a complete filing starts the clock, it is in practice highly recommended to submit a draft application for review.
Further, transactions in regulated industries (eg, banking) may require the approval of the relevant regulator prior to completion.