The Danish Competition Council (“DCC”) has once again deemed the practices of the chain of independent retailers Boligtextilbranchens Indkøbsservice A.M.B.A ("Botex") as anti-competitive. Botex maintained an agreement for at least 12 years that significantly limited the ability of retailers to advertise in each other's geographical areas.

Background

Botex is a Danish, nationwide chain consisting of 24 independent members, all of whom are retailers that own one or more Botex stores and/or curtain vans. The Botex members sell different home textiles, including curtains, sunshades, towels, bedding, duvets, etc.​

From May 2009 to August 2021, Botex members adhered to an internal agreement that allocated specific marketing territories to each retailer based on zip codes. This agreement restricted retailers’ ability to distribute advertising materials outside their designated areas, effectively prohibiting them from targeting households in competing retailers' territories.

Legal proceedings

Botex appealed the original decision from June 2022 to the Competition Appeals Tribunal. In October 2023, the Tribunal remitted the case for further consideration, raising fundamental questions about whether Botex's agreement could be considered as having an anti-competitive objective. The Tribunal referenced the European Commission's Horizontal Guidelines on the assessment of cooperation agreements between competitors.

The DCC's new decision

In response, the DCC conducted a detailed assessment based on the Horizontal Guidelines. The decision was supported by a recent judgment from the Maritime and Commercial High Court regarding an illegal nightclub cartel (previously described in our February newsletter), which confirmed that an agreement to partition markets restricted competition by object. 

Conclusion and implications

The DCC concluded that Botex's agreement had the object of restricting competition by dividing the market among its retailers. Consequently, the DCC has ordered Botex to immediately cease the illegal conduct and refrain from similar practices in the future. The case has been referred to the Maritime and Commercial High Court with the recommendation that Botex be fined. Given the recent ruling and the long-standing nature of the infringement, Botex may face a substantial financial penalty.

The DCC’s decision can be found here (in Danish only).

For more information, please contact Morten Nissen, Alexander Brøchner, or Stefan Brkic. 

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