Facts
Cablecom GmbH, a cable network operator, operates the retransmission of television and radio programmes over its cable networks as its core business. Since June 2002, it has also been licensed as a programme provider and operates a digital subscription television (Pay-TV) service under the "Cablecom Digital Cinema" brand. For this purpose, it uses its own digital platform "SwissFun".
Teleclub AG, a German-speaking Swiss programme provider, also offers subscription television and wants to distribute its programmes in digital form via Cablecom's networks. However, the parties could not agree on the digital platform to be used. Teleclub AG wanted to use its own "ADB" set-top box, while Cablecom insisted on the use of its "SwissFun" platform.
Thereupon, Teleclub AG initiated an investigation procedure with the Competition Commission. This obliged Cablecom to activate the digital television signals of Teleclub AG without conditions. Cablecom appealed against this to the Federal Administrative Court.
Considerations
The Federal Court concluded that the Competition Commission had wrongly obliged Cablecom to activate the digital television signals of Teleclub AG without conditions. While Cablecom is likely to be dominant in the relevant market for the transmission of television signals via cable networks in German-speaking Switzerland and its conduct could be qualified as an inadmissible refusal of business relations, an inadmissible tying transaction or a restriction of technical development.
However, the "legitimate business reasons" put forward by Cablecom for its conduct, in particular technical and economic considerations regarding the use of a uniform digital platform, could not be ruled out with…