Switzerland’s antitrust regulator spent three years pretending Swisscom held a dominant position in fiber. On Tuesday, the country’s Federal Administrative Court didn’t just overturn the 18 million-franc fine — it told Comco that the company has no dominant position on the relevant market in the first place. That is the entire foundation of any abuse-of-dominance claim, and EU-style competition regimes form the backbone of Swiss competition law. No dominance, no case. The fine is gone. The theory is gone. The precautionary measures are gone.
But the interesting question is not whether Comco lost. It lost, cleanly, and the court may still be appealed. The interesting question is cui bono: who was this case ever for, what did the obligations attached to that fine actually do, and who was going to collect when the penalty came due? Ask those questions and the ruling stops being a footnote on a fiber build-out and becomes a case study in how a regulator draws a market to fit the enforcement action it already wants to bring.
Start with what Comco actually imposed. Not just an 18 million-franc fine — the December 2023 decision came with obligations attached to Swisscom’s network expansion, the standard access-and-nondiscrimination package that European-style abuse-of-dominance regimes attach when they find a dominant incumbent. Read that package for what it is. Swisscom was spending its own capital to push fiber deeper into Swiss homes. Comco’s remedy would have attached strings to that capital: strings that make an incumbent’s newly built infrastructure available to rival operators who chose not to build. The beneficiaries of that arrangement are not mysterious. They are the alternative carriers who get wholesale access to a network somebody else funded, at terms a regulator sets. The cost-bearer is equally plain: the party that writes the check for the build-out, and the households behind it, whose fiber arrives later or thinner because the returns on the investment got capped before the concrete was dry.
That is the cui bono trace Comco never had to answer, because the fine arrived first and the reasoning arrived second. And there is a second beneficiary nobody in the press release will name: Comco itself. An 18 million-franc penalty against the country’s largest telecom operator is a budget line, a press cycle, and a proof of mandate. Regulators do not get promoted for concluding that the obvious incumbent is not, in fact, dominant. The institutional incentive runs toward the expansive market definition, the aggressive remedy, the big number — and toward defending all three through three years of proceedings and, if the leadership can’t swallow the loss, one more appeal to the Federal Supreme Court.
Which is why the market-definition question was never a technicality. It was the whole ballgame. Draw the relevant market narrowly enough — the specific wholesale segment where Swisscom’s fiber is the reference infrastructure — and dominance is nearly definitional. Draw it as the court did, at the level where operators actually compete for Swiss households, and dominance dissolves. The regulator picked up the pen and drew the map first, then marched in with handcuffs for a position the map produced. The court did not vindicate Swisscom’s business model this week. It did something more useful: it inspected the map.
Two disciplines keep this analysis honest, and both belong in it. The first: nothing in the court’s ruling says the Swiss fiber market is competitive, or that Comco’s underlying concern about wholesale access was invented. What the ruling says is that concern cannot be pursued through an abuse-of-dominance theory against a firm the record does not support as dominant. If rival carriers genuinely struggle to reach Swiss households, the instrument for that is entry policy and open-access rules set by legislature or treaty — not a penalty extracted after three years of litigation against a market definition the regulator authored. The second discipline cuts at the cheering section. Swisscom is not some plucky upstart that fought city hall. It is the former state monopoly, still part-owned by the Swiss Confederation, and its fiber rollout is a capital program with a guaranteed institutional floor behind it. The correct reaction to Tuesday’s ruling is not sympathy for Swisscom. It is relief that a check got written on a regulator who treated a market definition as an act of will.
The chronology makes the overreach worse, not better. Comco opened its probe at the end of 2020, after Swisscom announced plans that same year to push fiber deeper into Swiss homes, and issued precautionary measures that same year. It concluded in December 2023 that Swisscom had abused its market dominance. Three years of bureaucratic momentum — and the central premise never held up. An 18 million-franc penalty, roughly $21.6 million, premised on the claim that a company expanding its own infrastructure at its own expense was harming competition.
Comco now has two choices. Accept the ruling and walk away with its dignity partially intact. Or appeal to the Federal Supreme Court and ask a higher bench to find that a fiber operator with no dominant position somehow abused dominance — a climb where the court’s reasoning leaves the regulator with very little to stand on. Comco says it will “analyze the ruling in detail” before deciding. Translation: the regulator is deciding whether to keep embarrassing itself. The longer it fights, the more it validates every criticism of competition enforcement as performance in search of a beneficiary.
The pattern should sound familiar to anyone watching ambitious trustbusters run amok in allied jurisdictions. Across the Atlantic, American antitrust just watched something structurally identical play out: federal regulators tried to unwind a $100 million agreement between Zillow and Redfin — a deal that would have benefited consumers — before quietly retreating, and the unwind cost a hundred million dollars. The throughline is identical. A regulator convinced it is the only grown-up in the room, reaching for powers it does not possess over markets it has not bothered to define honestly.
Swisscom says its 2026 outlook is unchanged and that it remains committed to advancing the fiber rollout at pace. Fine. But the outcome this country should care about is not the health of one operator’s guidance. It is whether the fiber gets built, at what pace, and on whose terms. Comco’s obligations would have answered that question in favor of the operators who wanted access without building. The court’s ruling leaves the answer with the party that spends the capital and the households that wait for the service. That is not a defense of Swisscom. It is the principle that competition law exists to protect consumers from real harms — not to give a regulator a veto over infrastructure investment it happens to dislike, and not to let an agency manufacture the dominance finding it needs to justify the remedy it already chose.