Facts
The plaintiff TDC Switzerland AG (Sunrise) sued Swisscom AG and Swisscom Fixnet AG for damages under the CartA. The plaintiff claimed that the defendants had wrongfully refused to provide it with a wholesale offer for certain bandwidths during the period from 1 August 2001 to 14 November 2002, which constituted an infringement of competition law. The Commercial Court of Zurich dismissed the claim. The Federal Supreme Court upheld this decision:- Competition law is generally applicable alongside telecommunications law, as the sector-specific interconnection regulation of telecommunications law does not exclude competition.
- However, at the relevant time, the defendants were not legally obliged to grant the plaintiff the requested wholesale offer. The refusal of this offer can therefore neither be qualified as an inadmissible refusal of business relations nor as an inadmissible discrimination of trading partners under the CartA.
- The Federal Supreme Court dismissed the plaintiff's appeal.
Considerations
The Federal Supreme Court explained in its reasoning that at the relevant time, telecommunications law did not provide a sufficient legal basis for an interconnection obligation of the defendants on the "last mile".…