The EU Foreign Subsidies Regulation (FSR) entered into force in July 2023. Since 12 October 2023, the FSR notification obligation for concentration and public procurement above certain thresholds applies. The FSR directly affects Swiss companies with turnover in the EU. Under the FSR, concentrations and public procurement above certain thresholds must be notified to the European Commission (EC). The EC has investigative powers regarding subsidies granted by non-EU countries, such as Switzerland. The FSR calls for extensive data gathering efforts in the identification and quantification of the financial contribution that needs to be reported. We will provide a short overview of different methods available for data gathering, with some pros and cons.

The EU Regulation on Foreign Direct Investment Screening (FDI) applies since October 2020. Swiss companies (being non-EU) are not exempt from FDI filings and scrutiny in M&A transactions. In addition, shareholding structure of some of these companies may raise the bar of scrutiny. We will discuss the role of the in-house counsel in navigating the challenges of increasing FDI scrutiny, from negotiation of a deal to remedies imposed by the authorities.

EU Merger control trends – The judgment of the European Court of Justice in Illumina Grail seems to restore a certain level of legal certainty over the regulatory filings triggered by an M&A deal. On the opposite direction, the 2023 Judgment on Towercast, affirming that mergers can be challenged as an Abuse of Dominance, requires a (sometime very difficult) self-assessment. Finally, the call-in powers for below threshold merger implemented by national authorities across the EU (i.e. Italy) seems to introduce another element of unpredictability in the M&A landscape. The presentation will give an overview of the recent trends, challenges and pitfalls for Swiss companies that are active in the EU.