Mergers & Acquisitions 2023

• Law Firm: Baer & Karrer
• Subject Matter: Corporate/Commercial Law, M&A/Private Equity, Corporate and Company Law, Securities, Shareholders
• Author: Ms Mariel Hoch
• Published date: 03 April 2023

1 Relevant Authorities and Legislation

1.1 What regulates M&A?

Swiss M&A transactions related to public companies are mainly governed by the Swiss Financial Market Infrastructure Act ("FMIA"; including its implementing ordinances) and the Swiss Federal Merger Act ("MA"). In addition, block trades in public M&A transactions are governed by the Swiss Code of Obligations ("CO").

The FMIA includes the Swiss public takeover rules, which are enforced by the Takeover Board ("TOB"). Decisions of the TOB may be challenged before the Swiss Financial Market Supervisory Authority ("FINMA") and, finally, the Swiss Federal Administrative Court.

Apart from the specific FMIA tender offer regime, a number of other laws apply in the context of public tender offers, including the Federal Antitrust Act and the Federal Act on the Acquisition of Real Estate by Foreigners ("Lex Koller").

1.2 Are there different rules for different types of company?

The FMIA and the takeover rules only apply if: (i) the target is domiciled in Switzerland and its shares are fully or partly listed on a Swiss stock exchange; or (ii) the target is domiciled outside of Switzerland but the main listing of all or part of its shares is on a Swiss stock exchange.

In principle, the takeover rules do not apply to companies whose shares are exclusively listed on a stock exchange outside of Switzerland or are not listed on a stock exchange. However, the TOB has held that the takeover rules also apply to a company not listed on a stock exchange if, shortly prior to the transaction, either the shares were delisted to prevent the applicability of the takeover rules, or the target was demerged from a listed company

1.3 Are there special rules for foreign buyers?

In principle, Swiss law does not set any restrictions on foreign investments.

There is, however, one important exception: pursuant to the Lex Koller, foreign buyers (i.e. a foreigner, a foreign corporation or a Swiss corporation controlled by foreigners) must obtain a special permit from cantonal authorities in order to purchase real property or shares in companies or businesses owning real property, unless the property is used as a permanent business establishment. Further requirements and/or limitations exist in certain regulated sectors.

In addition, in May 2022, the Swiss Federal Council published its preliminary draft for a new law on the control of foreign direct investment. The draft is soon expected to be submitted to parliament for debate. The new law is intended to protect public order and security in the event of takeovers of domestic...