Swedish Court Confirms 1,5 MEUR Fine Against Tapwell for Resale Price Maintenance

On 21 March 2025, the Patent and Market Court (the “Court”) rejected Tapwell AB’s (“Tapwell”) appeal against the Swedish Competition Authority’s (the “SCA”) decision to impose a fine of SEK 16.9 million (approximately MEUR 1.5). This is the highest fine imposed by the SCA since it obtained fining powers in March 2021, as well as the highest Swedish fine yet for a vertical restraint. The SCA found that Tapwell, in breach of the prohibition on anticompetitive agreements, had fixed the prices and terms for the online resale of its kitchen and bathroom faucets and showers with the resellers Home Online and Hemgallerian, i.e. resale price maintenance (“RPM”).

The decision in full is available in Swedish here, and our previous blog post regarding the SCA’s decision is available here.

Background: the SCA’s Assessment of the infringement

The SCA had determined that Tapwell had implemented a pricing policy requiring resellers to maintain online prices no lower than ten percent below Tapwell’s recommended retail prices. The policy was enforced through direct communication, including emails and text messages, where Tapwell informed resellers that their prices were too low. Additionally, Tapwell actively monitored online pricing via price comparison platforms such as “Prisjakt” and forwarded notifications of price reductions to resellers, urging them to adjust their prices accordingly.

The SCA’s investigation had established that several resellers followed Tapwell’s instructions and adjusted their prices in accordance with the policy. Tapwell argued that the pricing policy was necessary to avoid free-riding by online retailers. The SCA’s case was limited to measures taken against two specific resellers as regards their online sales, Home Online and Hemgallerian although Tapwell had more than 300 resellers with physical and/or online sales. Tapwell was however the only company that was fined for the infringement. Tapwell had a market share of 10-14 percent and the retailers in questions only accounted for 0,2 percent of total sales of water mixers and sanitary fittings to end consumers in Sweden.

The infringement, which lasted 2,5 years, was considered to have a gravity value of five percent (the maximum is ten percent). The fine corresponded to 2.2 percent of Tapwell’s total annual turnover.

RPM as a “by object” infringement?

The Court agreed with the SCA’s conclusion that Tapwell’s RPM constituted a restriction by object, meaning that the infringement was sufficiently serious so that its anti-competitive nature did not require proof of actual market effects.

In order for a conduct to constitute a restriction by object, the conduct in question must be so harmful to competition that no assessment of the effects is necessary. The room for assessing a conduct as a restriction by object is narrow. Historically, the prevailing view has been that RPM is presumed to constitute a restriction by object. The Court however referred to recent case law from the Court of Justice of the European Union (the “ECJ”), including Case C‑211/22, Super Bock, which also concerned RPM (see our previous blog post regarding the Super Bock ruling). According to Super Bock, the ECJ has confirmed that the assessment of whether an RPM constitutes a by object infringement “may only be made after having determined that that agreement presents a sufficient degree of harm to competition, taking into account the nature of its terms, the objectives that it seeks to attain and all of the factors that characterise the economic and legal context of which it forms part.”

In the wake of Super Bock, more recent case law has clarified that an infringement by object analysis, should first examine whether the agreement, in view of its content and purpose, can objectively be assumed to have an anti-competitive objective. If so, in a second step, one should analyse whether there are circumstances in the economic and legal context of the agreement that invalidate the assumption that the agreement is harmful to competition (see Case C-298/22, Banco BPN).

The Court’s assessment

In assessing the “first step”, the Court noted that RPM is generally considered an infringement by object within the EU. The Court also took into account, inter alia, that the content of the agreement was to control the minimum prices, that many distributors complied with Tapwell’s requests, that price is one of the most important means of competition in the relevant market, that Tapwell monitored price compliance and that Tapwell’s objective was to prevent a price war on its products. The Court therefore found that the RPM had an anticompetitive objective.

The Court then examined the “second step”, which involves analysing the legal and economic context. Tapwell needed to show that the pro-competitive benefits it claimed were significant enough to create reasonable doubt about whether the agreement was harmful to competition and thus an infringement. Tapwell argued that its pricing policy aimed to prevent free-riding by online retailers. Free-riding occurs when consumers learn about products in physical stores but then purchase them online at a lower price, which can undermine the physical stores’ ability to provide the desired services. However, Tapwell did not manage to prove how its RPM in relation to Home Online and Hemgallerian would help reduce free-riding.

Consequently, the Court upheld the SCA’s finding that the agreements constituted a restriction by object and also upheld the fine determined by the SCA.

Dissenting opinion

The Court was composed of two judges and two economic experts. One of the economic experts dissented regarding whether Tapwell’s pricing policy constituted a by object infringement.

Implications of the Court’s decision for future RPM enforcement in Sweden?

The ruling confirms the SCA’s strict stance on RPM also when the supplier have rather low market shares and provides further guidance on the assessment of vertical restraints in Sweden. It is clear that RPM cannot be presumed to constitute infringements by object, but the economic and legal context of the agreement must also be assessed. Furthermore, the dissenting opinion may open up for the avoidance of free-riding as a defence for RPM. The decision has not yet been appealed to the Patent and Market Court of Appeal, but the deadline for appeal has not yet expired at the time of writing. In addition, it is rather common that the Patent and Market Court of Appeal overturns judgments of the lower court. We will monitor the case and get back with new reports.