25 - Switzerland

Summary

Dominant undertakings

According to Article 9(4) ACart, once the ComCo has established, in a binding and legally enforceable decision, that a specific undertaking holds a dominant position in a given market, every merger transaction involving that undertaking in the market in which it holds a dominant position or in a neighbouring market is subject to notification, irrespective of any thresholds.

In addition to the undertakings mentioned in the Switzerland chapter in the Main Work, the Swiss retail department store chain Migros has been held by the ComCo to be dominant within the meaning of Article 9(4) ACart. Consequently, Migros will have to notify all future concentrations pursuant to Art. 9(4) ACart.

Procedure and substantive assessment

The so-called Swissgrid concentration clarified the scope of the right to be heard of the parties in merger situations and the substantive assessment test in Switzerland.

Swissgrid, a joint venture created by seven electricity companies, was first cleared with conditions by the ComCo. The imposed conditions were notably the following: Swissgrid was ordered to grant third parties non-discriminatory access to its network, to refrain from trading in energy and from energy production and to maintain legal and factual independence from other Swiss electricity companies. The partnering undertakings challenged this decision in front of the Appeal Commission, which reversed the decision and cleared the concentration without any conditions.