Swedish Court Overturns SEK 16.9 Million RPM Fine Against Tapwell

On 30 June 2026, the Swedish Patent and Market Court of Appeal (the “Court”) allowed the appeal brought by Tapwell AB (“Tapwell”), overturning the Swedish Patent and Market Court’s ruling, thereby setting aside the Swedish Competition Authority’s (the ”SCA”) decision to impose a fine of SEK 16.9 million (approximately EUR 1.5 million) on Tapwell for alleged resale price maintenance (”RPM”).

The SCA had found that Tapwell, through an alleged pricing policy, had agreed with the two online retailers Home Online and Hemgallerian to restrict the prices and terms on which they resold Tapwell’s kitchen and bathroom products online. The Court of Appeal, however, concluded that the evidence was insufficient to establish either that Tapwell had implemented a pricing policy with the alleged content or that the two retailers had agreed to adhere to it.

The ruling is notable for its detailed assessment of the circumstantial evidence relied on by the SCA. The Court considered the retailers’ actual pricing behaviour, market transparency, automated pricing tools, discount practices and the absence of sanctions or other enforcement measures. Taken as a whole, the evidence was insufficient to establish the necessary concurrence of wills between Tapwell and the two retailers. Having reached that conclusion, the Court did not need to determine the remaining issues.

The Court’s ruling in full is available in Swedish here, and our previous blog post regarding the Swedish Patent and Market Court’s ruling is available here.

Background: the SCA’s Decision in Brief

On 20 December 2023, the SCA found that Tapwell had implemented a pricing policy requiring retailers to maintain online prices no lower than ten per cent below Tapwell’s recommended retail prices. According to the SCA, the policy was enforced through direct communications — including emails and text messages — in which Tapwell informed retailers that their prices were too low. The SCA also found that Tapwell monitored online prices through price comparison platforms such as Prisjakt and forwarded notifications of price reductions to retailers, urging them to adjust their prices accordingly.

The SCA concluded that several retailers had followed Tapwell’s instructions and adjusted their prices in line with the alleged policy. However, the SCA limited its case to measures concerning the online sales of two specific retailers: Home Online and Hemgallerian.

The Swedish Patent and Market Court subsequently upheld the SCA’s decision.

The Court’s Assessment

The Court began by noting that the SCA was required to establish that the parties had expressed a joint intention that the retailers should not be free to set their own prices; a so-called concurrence of wills.

As the SCA’s case was based entirely on circumstantial evidence, the central issue was whether the extensive written communications between Tapwell and its retailers, considered cumulatively and together with the remainder of the investigation, were sufficient to establish the facts on which the SCA’s case rested.

The Court acknowledged that certain communications clearly showed that Tapwell had expressed the view that retailers should not set consumer prices more than ten per cent below its recommended retail prices. Nevertheless, it concluded that the SCA’s investigation was insufficient to support the conclusion that Tapwell and the two retailers had expressed a joint intention to restrict retailers’ freedom to set their own prices.

The Court’s assessment rested on the following findings:

1. The communications revealed an ongoing battle among retailers to offer the lowest online price. In the Court’s view, this called into question whether the alleged pricing policy had in fact been implemented, or whether retailers remained free to price as low as they chose, even while expressing frustration about competitors undercutting them.
2. In assessing whether a pricing policy had been implemented, the SCA had not sufficiently taken into account the pricing practices of the largest retailer, Bygghemma, the use of pricing bots by other retailers, Tapwell’s system of general and promotional discounts, or the high degree of price transparency in online markets. The Court considered it reasonable to assume that these factors had a material impact on the retailers’ leeway in setting prices.
3. Tapwell had not imposed sanctions or taken retaliatory action against retailers who deviated from the alleged pricing policy. In the circumstances of the case, the absence of any enforcement mechanism, together with indications that the alleged policy had not been consistently followed, weighed against the SCA’s case that an agreement or coordination restricting the retailers’ pricing freedom had been established.
4. Pricing practices varied among retailers, and Home Online and Hemgallerian themselves frequently departed from the alleged policy. The SCA’s own price compliance analysis showed that both retailers had a lower degree of compliance than the average among the retailers examined.
5. Tapwell had repeatedly referred to Home Online and Hemgallerian listing incorrect gross prices. The Court noted that these two retailers entered products and prices manually, unlike many other retailers, which used automated imports of Tapwell’s product and price lists. It therefore could not be ruled out that a significant number of errors had appeared on these retailers’ websites. Tapwell had itself cited the need for accurate and consistent pricing information as an explanation for its interventions.
6. Retailers’ communications were open to more than one interpretation. From an economic perspective, efforts by retailers to maintain a certain price level could be explained by reciprocal behaviour in a cooperation dilemma: a retailer may be willing to maintain a certain price, but only if competitors do the same. The communications in the case, in which retailers complained about competitors selling at prices they considered too low and called on Tapwell to intervene, could be interpreted as evidence of consent to a pricing agreement, but could also be consistent with this alternative explanation.

Dissenting Opinion

The Court was composed of three judges and two economic experts. One judge dissented, agreeing with the Patent and Market Court that Tapwell had entered into anticompetitive agreements with Home Online and Hemgallerian regarding RPM.

Implications of the Court’s Ruling

The ruling illustrates the evidential standard the SCA must meet when seeking to establish an anticompetitive agreement based on circumstantial evidence. In particular, it shows the importance of considering the evidence as a whole and taking account of plausible alternative explanations for the conduct and communications in question.

The judgment also shows that a supplier’s expressions of dissatisfaction with retailers’ pricing, while potentially significant, may not in themselves be enough to establish a concurrence of wills. The wider commercial context may be an important part of the assessment.

Having found that the alleged pricing agreement had not been established, the Court did not need to decide whether the alleged conduct, if proven, would have constituted a restriction of competition by object. The ruling therefore leaves that question open in relation to the specific conduct at issue, despite the generally strict treatment of RPM under competition law.