Summary

  • The Federal Administrative Court overturned COMCO’s 2023 Swisscom fibre decision because the operator lacked dominance in the specific market COMCO had defined.
  • The decisive distinction was architectural: point-to-multipoint fibre networks cannot supply the same dedicated end-to-end physical fibre available through point-to-point construction.
  • The judgment does not establish that point-to-multipoint deployment is generally lawful or eliminate the possibility of a new competition investigation addressing different wholesale services.
  • Executives should distinguish technical availability, relevant-market definition and regulatory obligations before interpreting the ruling as a broader change in wholesale-access policy.

A competition ruling turns on the product being defined

The Swiss Federal Administrative Court’s judgment in B-3186/2024, dated 21 September 2026 and announced publicly on 13 October, changes the legal assessment of a dispute that began with Swisscom’s fibre construction strategy in 2020.

The Court upheld Swisscom’s appeal and set aside the Competition Commission’s decision of 4 December 2023. COMCO had concluded that the operator abused a dominant position by restricting access to physical fibre infrastructure, ordered changes affecting certain network deployments and imposed a sanction of approximately CHF 18 million.

Those were COMCO’s findings, not conclusions sustained by the Court.

The Court determined that Swisscom was not dominant in the particular relevant market COMCO had defined. Its reasoning did not depend on proving that wholesale competitors were satisfied with the access products available. Instead, it examined whether Swisscom could participate in the market that formed the basis of the alleged infringement.

The answer was no.

This distinction is central to understanding the judgment. An operator may control infrastructure and offer wholesale products without necessarily supplying the specific product included in a competition authority’s market definition. The Court found that COMCO had failed to account adequately for that separation.

How the network architecture created the dispute

On 6 February 2020, Swisscom announced its fibre-network strategy for 2020–2025, including a shift from a four-fibre point-to-point model, or P2P, towards a one-fibre point-to-multipoint architecture, or P2MP.

The technical differences were commercially significant.

In a P2P network, a dedicated continuous fibre can run from an exchange to an individual user connection. Another telecommunications provider can potentially obtain physical Layer 1 access to that individual fibre and use its own transmission equipment.

P2MP networks operate differently. Multiple user connections share feeder fibre through an architecture incorporating splitters. A dedicated, continuous exchange-to-user fibre of the kind available in P2P construction does not exist within that shared arrangement.

This does not mean P2MP infrastructure supports no wholesale access. As the Court’s written judgment explains, access to an entire fibre tree is technically possible. Layer 2 and Layer 3 wholesale services can also be provided.

But those are different products, with different implications for how much control a purchasing operator exercises over transmission technology and equipment.

An individual physical fibre, access to a shared fibre tree and an operator-managed data-transmission service should not be treated as interchangeable merely because each can support telecommunications services.

Nor does their technical difference establish, by itself, how competing operators value them or what competitive effects they produce.

The controversy arose from the relationship between these physical arrangements and the products that competitors sought to purchase.

From interim restrictions to the overturned decision

COMCO opened its investigation on 14 December 2020 and imposed interim measures addressing network construction that prevented the provision of Layer 1 access.

Swisscom challenged those provisional restrictions. The Federal Administrative Court rejected its appeal in 2021, and the Federal Supreme Court rejected the subsequent appeal in 2022.

Those proceedings concerned interim measures. They did not finally determine the substantive competition allegations addressed in the later judgment.

COMCO adopted its main decision on 4 December 2023 and formally notified the parties on 24 April 2024. The authority concluded that Swisscom held and abused a dominant position in a defined physical network-access market.

Its remedies included requirements concerning certain P2MP connections and restrictions on future deployment that would prevent the specified Layer 1 access. The decision also imposed the approximately CHF 18 million sanction.

The original COMCO decision therefore represented an intervention not only into wholesale-service availability but also into the physical characteristics of network construction.

Swisscom appealed on 23 May 2024.

The Court’s September 2026 judgment overturned the main decision, holding that COMCO’s market definition could not support its finding of dominance and abuse.

The two-step market-definition test

The most important part of the judgment concerns the sequence in which a relevant market must be identified.

The Court explained that market definition involves two steps.

First, the products or services forming the subject of the market must be established. In proceedings concerning an allegedly dominant undertaking, this requires identifying what the undertaking actually offers or is technically capable of providing.

Second, the authority must examine substitutability, assessing whether other products provide meaningful alternatives from the perspective of the relevant customers.

COMCO’s approach effectively began with the physical access product desired by competing telecommunications providers: individual, continuous fibre connections between the exchange and user premises.

It then excluded fibre-tree access and Layer 2 and Layer 3 services as substitutes.

The problem was not simply that COMCO selected a narrow market. It was that the market excluded every relevant product Swisscom could provide through the P2MP infrastructure under investigation.

The judgment’s market-definition analysis distinguishes the inability to supply a particular physical product from a refusal to supply an existing product.

That difference matters legally.

A dominant operator withholding access to infrastructure it can use itself presents a different factual situation from an operator whose deployed architecture cannot generate the requested end-to-end fibre, including for its own use.

The Court found that the latter situation applied to Swisscom’s P2MP construction in relation to COMCO’s defined market.

Geography reinforced the product mismatch

The Court also distinguished areas in which Swisscom had already installed P2MP infrastructure from areas where construction had not begun.

In the latter, no Swisscom fibre-based access offering existed. The Court therefore found no basis for dominance in COMCO’s specified market before such infrastructure was built.

In areas with completed P2MP architecture, Swisscom could offer access to fibre trees and Layer 2 or Layer 3 services.

Yet COMCO had expressly excluded those offerings from the market covering individual continuous fibres.

Consequently, the Court concluded that Swisscom could neither operate nor earn revenue in that particular market through its P2MP networks.

The interaction between product definition and geographic footprint was decisive. The Court was not describing a universal Swisscom market position, but assessing the availability of the relevant product in the specific areas and infrastructure configurations involved.

Because the Court found no dominant position on COMCO’s defined market, the required conditions for the alleged competition infringement were not established.

That finding was sufficient to overturn the decision without determining Swisscom’s remaining substantive grounds of appeal.

What the judgment does not decide

The outcome is substantial, but its boundaries are equally important.

The Court did not establish that P2MP architecture is categorically compatible with every competition-law obligation. Nor did it determine Swisscom’s position across every conceivable market for fibre-tree access or managed wholesale services.

It also did not reverse COMCO’s product exclusions by declaring Layer 2, Layer 3 and fibre-tree access equivalent substitutes for individual Layer 1 fibres.

Instead, those exclusions helped demonstrate why COMCO’s chosen market could not support its conclusion about Swisscom.

The judgment expressly leaves open the possibility of COMCO launching a new investigation with a different subject.

Any such investigation would require its own assessment, including an appropriate market definition and evidence relevant to the conduct alleged. Its outcome cannot be inferred from this judgment.

The Court’s announcement states that the ruling may be appealed to the Federal Supreme Court. The cited official material does not establish whether any subsequent appeal has been filed.

For now, the reported legal result is the annulment of COMCO’s 2023 decision, not a general judicial endorsement of one fibre architecture over another.