Swisscom wins TAF appeal: 18 million fine annulled

Context

TL;DR

• TAF overturns Swisscom's 18 million fine
• Comco had imposed conditions and a penalty
• The judgment concerns the expansion of the fiber-optic network
• An appeal to the Federal Supreme Court remains possible

Key facts

• Location → St. Gallen
• Authority → Federal Administrative Court
• Amount → 18 million francs
• Technology → transition from P2P to P2MP
• Judgment → September 21, 2026
• Comco investigation → late 2020
• Sanction decision → December 4, 2023
• Status → judgment not yet final

ST. GALLEN - The Federal Administrative Court (FAC) has upheld Swisscom's appeal in the dispute over the expansion of the fiber-optic network and annulled the decision by which the Competition Commission (Comco) had fined the company 18 million francs. In the market under examination, Swisscom does not hold a dominant position.

The FAC considers that Comco incorrectly applied cartel law. The measures ordered by the Commission also concerned areas where Swisscom had not yet begun expanding the network. Since it could not offer services in those areas, the judges held that the operator could not hold a dominant position either.

From P2P to P2MP

The case arose at the beginning of 2020, when Swisscom announced the switch from the point-to-point architecture, referred to as P2P, to the point-to-multipoint architecture, or P2MP. Under the previous system, each connection was linked directly to the central office via a dedicated fiber, which could also be leased by competing operators.

The new configuration instead provides for a shared line up to an intermediate distributor. From that point, the signal is split among the various connections. For other telecommunications providers, the change entails using Swisscom's signal and technology. The issue concerns the fiber network; to keep this dossier distinct from the other telephone services, the guide to telefonia mobile is also available.

At the end of 2020, Comco opened an investigation and adopted provisional measures to block installation of the new technology. After the FAC dismissed Swisscom's appeals in 2021, the Federal Supreme Court dismissed them in turn in 2022. On December 4, 2023, in the main proceedings, Comco imposed conditions for continuing the expansion and levied the penalty. The judgment of September 21, 2026, annuls that decision, but it can still be appealed before the Federal Supreme Court.

Operational details

What changes in practice

The decision does not focus solely on the fine. The decisive point is how the relevant market is defined: the TAF's assessment depends on the technology present in a given area and on whether Swisscom can offer services through that network.

Comparison between the two architectures

The distinction gives rise to two scenarios described in the judgment. In areas where the expansion had not yet begun, the TAF holds that Swisscom could not have held a dominant position: without the possibility of offering services, according to the judges, the condition identified by Comco was missing. In areas already equipped with the P2MP system, by contrast, the Court states that Swisscom does not operate in the market defined by the Commission, because that market essentially comprises dedicated and continuous fiber connections between the exchange and the buildings.

For telecommunications operators, the transition from P2P to P2MP therefore changes the technical relationship with the network. Previously, there was a dedicated fiber that could be leased; afterward, other providers must use Swisscom's signal and technology. The source does not, however, indicate any changes in prices, contracts, speeds or the work schedule for individual connections. The judgment annuls Comco's decision, but does not announce a commercial change for anyone using a fiber connection.

The proceedings also remain open judicially. Since the judgment has not yet become final, a possible appeal to the Federal Supreme Court could reopen the discussion. Also, to distinguish this matter concerning the fixed-line network from other services, the reference to telefonia mobile should be considered separately.

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Key points

How to follow the case

To correctly understand the effects of the judgment, it is useful to follow a precise sequence. The source does not indicate a new technical deadline for the expansion or an individual procedure for users; the relevant steps therefore concern the technology, the state of the network and the judicial process.

Five checks

1. Identify the architecture mentioned: P2P means a dedicated connection between the user and the central office, while P2MP indicates a shared line up to an intermediate distributor. 2. Check the status of the expansion in the area concerned. The judgment distinguishes between areas where Swisscom had not yet begun the work and areas already equipped with P2MP. 3. Separate the market defined by Comco from the rest of the network. The Commission's reference essentially concerns dedicated, continuous fiber connections between the central office and buildings. 4. Reconstruct the dates of the proceedings: investigation at the end of 2020, appeals rejected in 2021 and 2022, main decision of December 4, 2023, and TAF judgment of September 21, 2026. 5. Still consider the judicial outcome provisional. The judgment is not final and binding and may be appealed before the Federal Supreme Court.

This sequence avoids confusing three different aspects: the network's technical model, the market definition used by Comco and the final validity of the TAF decision. For those following the case, the most concrete point is not a new tariff, which is not indicated in the source, but the criterion used by the judges to rule out Swisscom's dominant position.

The distinction between a network already using P2MP and a network not yet expanded is also decisive. In the first case, according to the TAF, Swisscom does not operate in the market defined by Comco; in the second, it cannot offer services and therefore cannot hold a dominant position. The situation can be changed only by a possible appeal before the Federal Supreme Court.

To learn more about another area of telephone connectivity, consult the guide to telefonia mobile.

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Source: tio.ch

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