Press release regarding judgment B-3186/2024
No breach of competition law by Swisscom's fibre-optic network expansion
The Federal Administrative Court upholds the appeal lodged by Swisscom relating to the expansion of its fibre-optic network. Swisscom does not have a dominant market position on the relevant market defined by the Competition Commission.
The Competition Commission wrongly concluded that Swisscom had infringed competition law. (Picture: Werner Kerschbaummayr / Keystone)
At the beginning of 2020, Swisscom announced its new strategy for the expansion of its fibre-optic network. Instead of a point-to-point topology (P2P), it would in future rely on a point-to-multipoint topology (P2MP). Unlike the existing architecture of P2P networks, P2MP networks do not use end-to-end fibre-optic cables between Swisscom’s exchange centres and the relevant user units which can be offered individually to other telecommunications service providers. In this regard, the Competition Commission (COMCO) opened an investigation into Swisscom at the end of 2020. At the same time, COMCO issued precautionary measures prohibiting the expansion of Swisscom’s fibre-optic network; the Federal Administrative Court (FAC) and the Federal Supreme Court dismissed the respective appeals in 2021 and 2022. In its ruling of 4 December 2023, COMCO imposed obligations on Swisscom regarding the further expansion of its fibre-optic network in the main proceedings, and imposed a sanction of around CHF 18 million.
No dominant market position
The FAC upholds Swisscom’s appeal against COMCO’s ruling of 4 December 2023 and sets aside the contested ruling. On the one hand, the measures imposed in COMCO's ruling apply to areas where Swisscom has not yet started expanding its fibre-optic network. In these areas, Swisscom cannot offer any fibre-optic-based services and, therefore, cannot hold a dominant market position. On the other hand, the measures ordered relate to areas in which Swisscom has already installed the new P2MP technology. However, Swisscom does not operate in the relevant market, as defined by COMCO, which essentially covers end-to-end fibre-optic cables from the exchange centre to the individual user unit. In absence of a dominant market position on the relevant specific market, COMCO wrongly concluded that Swisscom had infringed competition law. The appeal is therefore well-founded for this reason alone.
This judgment may be appealed to the Federal Supreme Court.
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Rocco Maglio
Spokesperson