Swiss Competition Report - 1st Quarter 2006

Merger Control

Failing Company Defence

In a decision dated March 6 2006, the FCC cleared the acquisition of AZM Aargauer Zentralmolkerei AG (AZM) by Emmi AG (Emmi). The FCC concluded that the merger created a dominant position of Emmi on the Swiss markets for milk, alimentary cream and butter, but cleared the acquisition on the basis of the Failing Company Defence. Without the acquisition, AZM would have disappeared and Emmi would have gained AZM's market shares. Indeed, the relevant markets are still regulated by the Swiss state and therefore they are closed to foreign competitors. The FCC concluded that only the opening of the Swiss market to European companies would allow the restoration of effective competition.