Published: 15 November 2025
On 24 September 2025, the Swiss Federal Court (FSC 2C_683/2023) upheld sanctions against UPC Schweiz GmbH (later Sunrise GmbH) for unlawfully refusing to deal with its competitor Swisscom in the Pay TV market over Swiss ice hockey broadcasting rights. This decision brings closure to the ongoing dispute over sports broadcasting rights in the Pay TV sector. UPC had secured exclusive rights to broadcast National League A and National League B ice hockey on its MySports channel for five years beginning in 2017. Swisscom, which had previously been ordered by COMCO in 2016 to share football and hockey rights from earlier seasons with UPC, then requested access to these broadcasts. UPC refused, declining both to distribute MySports on Swisscom’s TV platforms and to sublicense the ice hockey rights.
Direct and Indirect Refusal to Deal: The Role of Executive Statements
The court determined that UPC engaged in both direct and indirect refusal to deal. The direct refusal took place on 17 March 2017 when UPC sent Swisscom an explicit letter declining any cooperation. The indirect refusal came through a delay strategy that continued until 5 February 2020. This case demonstrates how important top executive statements can be as evidence. Critical evidence included remarks from UPC’s former CEO stating that the company would use the hockey rights “as a competitive tool against Swisscom,” along with comments from the MySports programme manager in 2017 indicating that UPC intended to break up monopoly structures as a new entrant and would not make an offer for at least three years. While negotiations did restart in late October 2018, the FSC concluded that these discussions lacked any real intention to reach an agreement before summer 2020, making them a dilatory tactic.
Indispensability and Objective Necessity
Regarding the material conditions of the abuse, this case continues to develop earlier case law on refusal to deal. Three cases have now defined the duty to deal criteria, all involving immaterial or intellectual goods: two sports rights cases and the DCC case, where the Federal Administrative Court confirmed that refusing to supply interface information was abusive.
Indispensability is required but means objective necessity for effectively competing in a market. A good becomes particularly indispensable – and therefore objectively necessary – when a market participant cannot effectively compete without it. Significantly, a refusal-to-deal abuse does not require demonstrating complete elimination of competition, whether through actual market foreclosure or threatened market exclusion. This approach represents a clear departure from the FSC’s own 2003 case law concerning the opening of electrical network distribution (ATF 129 II 497 EEF).
Potential Anti-Competitive Effect
What’s required is proof of a potentially detrimental effect or proof that the conduct can actually have anti-competitive effects (Nachweis einer tatsächlichen Eignung des Verhaltens, sich wettbewerbsbehindernd auszuwirken), as long as this capability isn’t purely hypothetical. Somewhat confusingly, the FSC states that the conduct, during the period when it occurred and given the specific circumstances, was capable of restricting or hindering competition even though it may have lacked actual effects on the market (trotz seiner [möglicherweise] fehlenden Wirkung). Here again, the former UPC CEO’s statements served as proof of intent to harm the competitor. Through its factual assessment, it is apparent that the FSC characterized this refusal to deal as an intent-based abuse, where the CEO’s clear intention to use sports rights as a competitive advantage demonstrates an intent to exclude competitors. Although not framed as such in legal terms, the intent appears in this case to be a sufficient element for establishing that the refusal to deal was capable of restricting competition in the Pay TV market.
Key Takeaways
This case reinforces the low thresholds that COMCO and the Swiss courts have set for finding an abuse and imposing a duty to deal on dominant companies.
- Indispensability is interpreted broadly enough to include any appealing product or premium content that can function as a competitive tool in the Pay TV market.
- Denying access to such an objectively necessary product doesn’t have to completely eliminate a competitor’s ability to participate in the Pay TV market – simply putting them at a disadvantage is enough.
- Refusal to deal is treated like any other abuse of dominance, which makes a duty to deal a relatively common rather than exceptional measure against dominant companies.
- This case also underscores the significance of manager statements and, by extension, internal documents in establishing both the intent and capability of conduct to restrict competition.