Decision of the Federal Supreme Court on Equal Treatment of Wholesale Partners in the Administration of .ch Domains

Facts

The SWITCH Foundation, which has been entrusted by the Federal Office of Communications (OFCOM) with the administration and allocation of .ch domains, founded the subsidiary switchplus ag in 2009, which is also active in the field of domain registration and other Internet services. OFCOM then initiated supervisory proceedings against SWITCH and ordered that SWITCH must ensure that switchplus ag does not benefit from any promotional services provided by SWITCH that are not available to other wholesale partners. SWITCH appealed against this order, which was partially upheld by the Federal Administrative Court. The Federal Supreme Court ultimately upheld SWITCH's appeal in full.

Considerations

The Federal Supreme Court states that SWITCH, as the registry operator for .ch domains, performs a public task and is therefore bound by fundamental rights. Vis-à-vis its wholesale partners, who are in competition for the registration of domains, SWITCH must observe the principle of equal treatment.

However, insofar as SWITCH competes with its wholesale partners in the retail sector, i.e. vis-à-vis end customers, it is not bound by fundamental rights, but can invoke its economic freedom. It may therefore advertise for its retail activities, including through…