Admissibility of Promotional Services Provided by the Registry Operator SWITCH in Favor of its Subsidiary switchplus ag

Facts

The SWITCH Foundation, as the registry operator for the ".ch" domain, has been entrusted by the Federal Office of Communications (OFCOM) with the administration and allocation of domain names. In connection with the establishment of the subsidiary company switchplus ag, OFCOM initiated a supervisory procedure against SWITCH and obliged it, among other things, to ensure that switchplus ag does not benefit from any promotional services of SWITCH that are not available to other wholesale partners.

SWITCH filed a complaint against this decision. The Federal Administrative Court partially upheld the complaint and confirmed the obligation in paragraph 3 of the decision. SWITCH is now appealing against this to the Federal Supreme Court.

Considerations

The Federal Supreme Court states that while SWITCH, as the registry operator, performs a public task and is subject to the principle of equal treatment towards its wholesale partners, in relation to end customers, SWITCH is a competitor of its wholesale partners and competes with them, both in terms of the allocation and management of domain names and in terms of other private commercial services.

As far as these competitive activities are concerned, SWITCH can invoke economic freedom and advertise for its activities, including through a subsidiary. A…