Following Reassessment: Botex Infringed Competition Law

Chairman of the Competition Council, Christian Schultz, stated:

For at least 12 years, the members in the Botex chain were party to an unlawful agreement that restricted their ability to market themselves in each other's areas. This weakened competition not only among Botex stores but also in relation to other market players.​

Even though the members’ cooperation also involved a joint purchasing agreement, they remain competitors. When they cannot freely advertise, consumers' access to information is restricted, which in turn hampers their ability to compare price and quality. This can lead to higher prices, lower service levels, reduced quality, and limited choice.​

The Competition Council has determined that Botex has infringed the prohibition on anti-competitive agreements under the Danish Competition Act and TFEU Article 101(1).​

For a period of at least 12 years, the members of the Botex chain had an agreement not to distribute advertisements to households located in each other's areas. These areas were allocated to each Botex member based on postal codes. The case includes examples where the agreement was interpreted to also cover other types of marketing beyond household-distributed advertisements. The anti-competitive agreement was in place from at least May 2009 to August 2021.​

The Competition Council has ordered Botex to immediately cease the unlawful conduct and to refrain from engaging in the same or similar conduct in the future. In addition, the Competition Council has decided to bring the case before the Maritime and Commercial Court for the purpose of Botex being fined.​

The case was originally decided by the Competition Council in June 2022. Botex appealed the decision to the Competition Appeals Tribunal, which in October 2023 remitted the case for reassessment. The Competition Council has now adopted a new decision in the case.​

The Competition Appeals Tribunal raised fundamental and principal questions as to whether the Botex chain's decision could be considered to have had an anti-competitive object. Among other things, the Tribunal referred to the European Commission's Horizontal Guidelines.​

The new decision has addressed the questions raised, including the interpretative issues, which have been discussed with the European Commission. Moreover, a recent judgment from the Maritime and Commercial Court supports the Competition Council's previous assessment of when an agreement can, by its very nature, have an anti-competitive object. In that case, the court found that several nightclubs had entered into a market-sharing agreement that had the object of restricting competition. The court held that the market sharing was "by its very nature" harmful to competition, even though the cooperation also involved joint purchasing.​

Botex is a nationwide voluntary chain consisting of 24 independent members, each owning one or more Botex stores and/or curtain vans. Members sell home textiles at the retail level, including curtains, sun protection products, towels, bedding, duvets, and more.​

Read the decision (in Danish)

For further information

Contact the Head of Communications at the Danish Competition and Consumer Authority, Hanne Arentoft, at phone +45 41 71 50 98.