1. Introduction

Information exchange through distributors arises when a manufacturer, supplier, wholesaler, platform, or other upstream undertaking obtains, supplies, or facilitates the exchange of commercially sensitive information through its distributors or retailers.

The issue is particularly important where the supplier has a dual role: it supplies products to independent distributors while also competing with those distributors at the downstream level. In such circumstances, information that appears to be part of an ordinary vertical relationship can become horizontal information exchange between competitors.

Under Danish and EU competition law, the principal legal framework is Section 6 of the Danish Competition Act and Article 101 TFEU. The central question is whether the information exchange restricts the independent competitive decision-making of the undertakings involved.

The modern Danish position is especially significant following the Hugo Boss/Kaufmann/Ginsborg litigation, where the Danish Maritime and Commercial High Court treated exchanges between a supplier and its retailers as horizontal because the supplier also competed with those retailers in the retail market.

2. What Is Information Exchange Through Distributors?

A typical distribution structure is:

Manufacturer → Distributor → Retailer → Consumer

Information may flow in both directions:

• manufacturer → distributor;
• distributor → manufacturer;
• distributor → distributor;
• distributor → manufacturer → another distributor;
• information collected by a common intermediary/platform → competing distributors.

Not every exchange is unlawful.

Usually legitimate information

Information may legitimately be exchanged when it is genuinely necessary for the distribution relationship, such as:

• product specifications;
• regulatory requirements;
• stock availability;
• delivery schedules;
• purchase orders;
• product recalls;
• warranty information;
• technical instructions;
• aggregate sales information necessary for logistics;
• information required to calculate rebates or contractual payments.

The European Commission's dual-distribution guidance recognises that suppliers normally need to communicate information concerning supply volumes, stock, pre-orders, lead times, product information, marketing campaigns and other information necessary to operate the vertical relationship.

High-risk information

Greater competition-law risk arises where information concerns:

• future selling prices;
• future discounts;
• intended promotions;
• individual customer prices;
• margins;
• future output;
• production plans;
• inventories where they reveal future strategy;
• commercially sensitive customer information;
• planned market entry or withdrawal;
• individual distributor sales strategies;
• future quantities;
• strategic marketing plans.

The risk increases substantially when the information enables competitors to predict one another's future conduct.

3. Why Distributors Create a Special Competition Problem

A distributor can occupy two legally different relationships with the same supplier.

Vertical relationship

Supplier
↓
Distributor

Here, the parties are ordinarily operating at different levels of the supply chain.

Horizontal relationship

Supplier's own retail operation
↕
Distributor's retail operation

If the supplier itself sells directly to consumers, it may compete with its distributor.

Therefore:

The same communication can be vertical in form but horizontal in competitive substance.

This distinction was central to the Danish Hugo Boss cases. Hugo Boss supplied Kaufmann and Ginsborg but also sold Hugo Boss products directly through its own stores. The courts therefore examined the information exchange as an exchange between competitors rather than merely as ordinary supplier-retailer communication.

4. Applicable Legal Framework

A. Section 6 of the Danish Competition Act

Section 6 prohibits agreements, decisions by associations of undertakings and concerted practices that have as their object or effect the restriction of competition.

The provision broadly corresponds to Article 101(1) TFEU.

Information exchange can therefore constitute:

1. an agreement;
2. a concerted practice;
3. a component of a broader cartel;
4. a mechanism facilitating coordination between competitors.

B. Article 101(1) TFEU

Article 101 applies where undertakings coordinate their competitive behaviour instead of independently determining their market conduct.

Information exchange may constitute a restriction by object where its nature reveals a sufficiently harmful form of coordination.

The CJEU has confirmed that an information exchange does not necessarily need to be accompanied by an express cartel agreement. A sufficiently harmful exchange may itself constitute a restriction of competition. Banco BPN/BIC Português is particularly important on this point.

5. The Key Legal Distinction: Vertical vs Horizontal Information

This is perhaps the most important issue in distributor information-exchange cases.

Legitimate vertical exchange

For example:

Manufacturer tells Distributor:
"Your order of 10,000 units will be delivered next month."

This normally concerns performance of the supply agreement.

Potentially problematic horizontal exchange

Suppose the manufacturer operates its own retail stores and tells Distributor:

"Our stores will charge €90 next month and will give a 20% discount."

If the distributor competes with the manufacturer's stores, the information may reveal the manufacturer's future competitive strategy.

The distributor can then adjust its own retail prices or promotions.

That transforms the information exchange into a potential horizontal coordination mechanism.

6. Information Can Be Exchanged Indirectly

Competition law does not require competitors to communicate directly.

Information may pass through:

Supplier → Distributor A → Supplier → Distributor B

or:

Distributor A → Common Supplier → Distributor B

or:

Competitor → Distributor → Manufacturer → Competitor

A particularly serious situation occurs where a manufacturer receives competitively sensitive information from one distributor and communicates it to another distributor.

For example:

Distributor A tells manufacturer:
"We intend to reduce our price to €95."

Manufacturer tells Distributor B:

"Distributor A is planning to charge €95."

That may reduce Distributor B's uncertainty concerning its competitor's future pricing.

7. Information Exchange Through a Distributor as a "Hub-and-Spoke" Structure

A distributor or supplier can sometimes become the hub connecting competing undertakings.

Structure

Retailer A
↓
Supplier / Distributor / Platform
↓
Retailer B

The intermediary may obtain information from both competitors.

The legal problem becomes particularly serious if the intermediary knowingly facilitates reciprocal communication.

Example

Retailer A:

"We intend to increase prices by 5%."

Retailer B:

"We intend to increase prices by 5%."

If the intermediary communicates those intentions between the retailers, the intermediary may facilitate coordination.

The absence of a direct A–B communication does not necessarily eliminate Article 101/Section 6 risk.

8. Future Information Is More Dangerous Than Historical Information

A basic distinction is:

Historical information

Information concerning sales from several years ago is generally less likely to reveal current competitive strategy.

Current information

Current prices, discounts and sales quantities can be highly sensitive.

Future information

Future prices, promotions, production and strategic plans are particularly problematic.

For example:

The modern EU approach emphasises that confidential and strategic information capable of removing uncertainty concerning competitors' future conduct may constitute a restriction by object.

9. The Role of Market Structure

Information exchange is particularly problematic where the market is:

• concentrated;
• oligopolistic;
• characterised by significant barriers to entry;
• characterised by homogeneous products;
• highly transparent;
• dependent on repeated interaction.

In a concentrated market, knowing a competitor's future strategy may substantially reduce competitive uncertainty.

The CJEU in Banco BPN/BIC Português emphasised the importance of the nature of the information and the economic context, including concentration and barriers to entry.

10. Six Important Case Laws

1. Hugo Boss Nordic ApS v Danish Competition Council — Denmark, 2024

Facts

Hugo Boss supplied its products to Kaufmann and Ginsborg.

However, Hugo Boss also operated its own retail outlets and therefore competed with those retailers downstream.

Between 2014 and 2018, information concerning matters including:

• prices;
• discounts;
• quantities;
• sale periods;
• products placed on sale

was exchanged.

The Danish Maritime and Commercial High Court upheld the competition authorities' conclusions that the information exchange was unlawful.

Principle

The fact that one undertaking is a supplier to another does not automatically make information exchange vertical and lawful.

Where the supplier also competes with the distributor, commercially sensitive information concerning downstream competitive behaviour can constitute horizontal information exchange.

Importance

This is the leading Danish example for:

information exchange in dual distribution.

Hugo Boss subsequently accepted a DKK 12 million fine, while Kaufmann accepted a DKK 6 million fine; Ginsborg received leniency in the enforcement proceedings.

2. Hugo Boss v Kaufmann and Ginsborg — Danish Competition Council, 2020

The original Danish Competition Council decisions concerned two separate information-exchange relationships.

Hugo Boss exchanged information with:

1. Kaufmann; and
2. Ginsborg.

The information concerned prices, discounts and quantities relating to future sales.

The Council considered the exchange contrary to Section 6 and Article 101. The subsequent 2024 court judgment confirmed the essential competition-law assessment.

Principle

A supplier cannot rely solely on the existence of a distribution agreement to justify exchanging sensitive information with a distributor when the supplier and distributor compete downstream.

Significance

This case illustrates the importance of examining the economic function of the information, rather than merely the contractual relationship between the parties.

3. Bestseller Wholesale A/S v Danish Competition Council — Western High Court, 2006

The Bestseller case concerned information exchange in a distribution/franchise environment and the interaction between information exchange and resale-price concerns.

The case is particularly relevant because it demonstrates that competition authorities may examine information flows between a supplier and its franchise/distribution network where information concerning prices is involved.

Principle

Information received from downstream partners may create competition concerns where it gives the supplier detailed knowledge of distributors' pricing behaviour or is used to influence downstream competition.

The later Danish competition framework also demonstrates that access to distributor price information cannot automatically be assumed to be harmless merely because the information is generated within a franchise or distribution relationship.

4. Super Bock Bebidas, C-211/22 — CJEU, 2023

Facts

Super Bock operated a distribution system involving distributors and was accused of imposing minimum resale prices.

The case concerned the relationship between a supplier and its distributors and the requirements for establishing an agreement or concerted practice under Article 101.

Principle

The CJEU examined how a competition authority can establish a concurrence of wills between supplier and distributors and treated minimum resale-price practices as capable of constituting a restriction by object.

Relevance to information exchange

Although the case principally concerns resale-price maintenance rather than a pure information-exchange infringement, it is highly relevant where information from distributors is used to monitor or enforce downstream pricing.

For example:

Distributor → reports actual price → Supplier → pressures other distributors to maintain price.

The information exchange may therefore form part of a broader vertical restriction.

5. Eturas UAB v Lithuanian Competition Council, C-74/14 — CJEU, 2016

Facts

Several travel agencies used a common electronic booking system.

The system administrator communicated a message concerning a restriction on discounts available through the system.

The issue was whether the common system and communication could establish a concerted practice.

Principle

An intermediary technological system can become a mechanism through which competitors coordinate their conduct.

The absence of a traditional face-to-face cartel meeting does not prevent an infringement.

Relevance

This principle is highly relevant to modern distributor networks using:

• common ERP systems;
• distributor portals;
• marketplace software;
• pricing dashboards;
• shared inventory systems;
• automated recommendation systems.

A common platform can therefore function as an information-exchange mechanism.

6. T-Mobile Netherlands, C-8/08 — CJEU, 2009

Facts

Representatives of competing mobile-network operators participated in a meeting at which competitively relevant information was discussed.

Principle

The CJEU held that even a single meeting can constitute a concerted practice where the information exchange has an anti-competitive object.

Relevance to distributor information

The same principle matters where a supplier-distributor relationship produces only a limited number of communications.

An authority does not necessarily need to prove:

hundreds of communications + years of coordination.

A single strategically significant exchange can potentially be sufficient, depending on its content and circumstances.

11. Additional Important Case: Dole Food, C-286/13 P

Dole Food and Dole Fresh Fruit Europe v Commission, C-286/13 P, is a leading information-exchange case.

The case involved exchanges concerning price-related information in the banana market.

The CJEU considered whether the information exchanged was sufficiently connected with competitive parameters to constitute a restriction by object.

Principle

Information does not need to state an exact future retail price to be competitively sensitive.

Information concerning price-related parameters may be sufficient where it reduces uncertainty concerning competitors' market behaviour.

Distributor relevance

The principle is applicable where manufacturers or distributors exchange information concerning:

• expected pricing;
• quotation prices;
• price movements;
• supply quantities;
• commercially relevant demand conditions.

12. What Makes Distributor Information Exchange Illegal?

Several factors are particularly important.

A. Competitor relationship

The risk is greatest where:

Supplier = competitor of distributor

or:

Distributor A = competitor of Distributor B.

B. Sensitivity of information

The more strategically important the information, the greater the risk.

C. Timing

Future information is generally more problematic than genuinely historical information.

D. Individualisation

Information relating to a particular distributor is more sensitive than genuinely aggregated market statistics.

E. Frequency

Repeated exchanges may demonstrate an ongoing coordination mechanism.

However, frequency is not always necessary where the information itself is sufficiently harmful.

F. Market concentration

Information exchange in a highly concentrated market can have greater competitive significance.

G. Purpose and context

Authorities will examine:

• why the information was requested;
• who received it;
• how it was used;
• whether competitors had access;
• whether the information was public;
• whether the exchange was necessary for distribution;
• whether the supplier competed downstream.

13. "Necessary for Distribution" Is Not a Complete Defence

Businesses often argue:

"We needed this information to manage our distributors."

That may be legitimate, but necessity must be assessed carefully.

Legitimate

A manufacturer needs:

"How many units do you require next month?"

for supply planning.

Risky

A manufacturer competing with the distributor asks:

"What price will you charge next month?"

That information may not be necessary for fulfilling the supply contract.

The distinction is therefore:

Operational information necessary for the transaction
versus
Strategic information revealing competitive behaviour.

14. Distributor Sales Data

Sales data deserves special attention.

A manufacturer may legitimately need distributor sales information for:

• invoicing;
• rebates;
• warranty administration;
• inventory management;
• forecasting.

But detailed, real-time data can create competition concerns where it enables the manufacturer to monitor individual distributors' competitive behaviour.

Example

Manufacturer receives:

If the manufacturer competes directly with A, B and C, this information could reveal highly sensitive downstream market behaviour.

15. Information Aggregation

Aggregation can reduce risk.

High risk

"Distributor A will charge €95 next Monday."

Lower risk

"Average retail price across 500 retailers last quarter was €98."

But aggregation does not automatically make information lawful.

The authority may consider:

• number of undertakings;
• age of data;
• level of aggregation;
• market concentration;
• ability to identify individual firms;
• frequency of publication;
• whether the data permits reconstruction of individual strategies.

16. Information Exchange Through a Common Distributor

Suppose three manufacturers sell competing products through the same distributor.

The distributor receives:

• Manufacturer A's future price;
• Manufacturer B's future promotion;
• Manufacturer C's expected production.

If the distributor communicates this information among the manufacturers, the distributor may become an information hub.

Structure

Manufacturer A
↘
Common Distributor
↗
Manufacturer B

The legal concern is not merely the distributor's conduct.

The manufacturers may also face liability if they knowingly participate in or facilitate the exchange.

17. Hub-and-Spoke Risk

The following arrangement is particularly dangerous:

Competitor A
↓ sensitive information
Distributor / intermediary
↓
Competitor B

Potential evidence includes:

• emails;
• WhatsApp messages;
• distributor portals;
• CRM records;
• meeting notes;
• pricing spreadsheets;
• shared databases;
• API logs;
• platform instructions;
• internal compliance documents.

A company can therefore face competition-law exposure even where its own employees never communicate directly with the competitor.

18. Information Exchange and Resale Price Maintenance

Information exchange often interacts with resale price maintenance (RPM).

Example

1. Supplier recommends a retail price.
2. Distributor reports its actual retail price.
3. Supplier discovers distributor is discounting.
4. Supplier contacts distributor.
5. Supplier asks the distributor to restore the recommended price.
6. Supplier obtains information from other distributors.
7. Supplier uses that information to monitor compliance.

The information exchange itself may therefore form part of a broader RPM mechanism.

Super Bock Bebidas demonstrates the importance of examining the entire supplier-distributor arrangement rather than treating pricing communications in isolation.

19. Information Exchange and Online Distribution

Modern distribution networks substantially increase risk because information can be transmitted automatically.

Examples include:

• marketplace dashboards;
• automated pricing software;
• distributor APIs;
• algorithmic repricing;
• inventory-management platforms;
• shared CRM systems;
• retailer portals;
• electronic ordering systems;
• automated promotional calendars.

The Eturas judgment is particularly useful in understanding how an electronic system can facilitate coordination among otherwise separate undertakings.

20. Compliance Measures for Businesses

Companies using distributors should implement an information-exchange protocol.

Information that should generally be restricted

Employees should be instructed not to request unnecessary:

• future prices;
• future discounts;
• future promotions;
• competitor margins;
• strategic output plans;
• customer-specific competitive strategies;
• future market-entry plans.

Information that should be controlled

Where information is commercially necessary, companies should consider:

• aggregation;
• anonymisation;
• historical reporting;
• access restrictions;
• data minimisation;
• clean teams;
• independent third-party collection;
• competition-law review.

21. Practical Compliance Matrix

The actual assessment remains dependent on the market and circumstances.

22. Key Legal Tests

A competition authority examining distributor information exchange should ask:

Test 1 — Who exchanged the information?

Supplier, distributor, retailer, intermediary or competitor?

Test 2 — Are the parties competitors?

Especially important in dual distribution.

Test 3 — What information was exchanged?

Operational or strategic?

Test 4 — Is it current or future?

Future information generally creates greater risk.

Test 5 — Is it individualised?

Can a particular undertaking's strategy be identified?

Test 6 — Was the exchange necessary?

Was it genuinely required to perform the distribution agreement?

Test 7 — Did it reduce competitive uncertainty?

Could the recipient predict the sender's market conduct?

Test 8 — Was there coordination?

Did the exchange facilitate common or parallel market conduct?

23. Relationship Between the Six Principal Cases

24. Important Distinction: Information Exchange Is Not Automatically Illegal

Competition law does not prohibit every exchange of information between suppliers and distributors.

The key distinction is between:

information necessary to make the distribution relationship function

and

information that allows competing undertakings to predict or coordinate their competitive conduct.

This distinction is particularly important in Denmark because the Hugo Boss litigation demonstrates that an ordinary supplier-retailer relationship can contain a separate horizontal dimension when the supplier competes directly with its retailers.

25. Conclusion

Information exchange through distributors is a significant competition-law risk because distributors can function both as legitimate commercial partners and as channels through which competitively sensitive information reaches competitors.

The principal danger arises where:

Supplier + Distributor + Downstream Competition

creates a situation in which information concerning:

• future prices;
• discounts;
• quantities;
• promotions;
• margins;
• customers; or
• competitive strategies

is communicated between undertakings that compete at the same market level.

The Hugo Boss/Kaufmann/Ginsborg litigation is particularly important for Denmark because it confirms that the existence of a vertical distribution agreement does not prevent an information exchange from being characterised as horizontal where the supplier also competes downstream.

The broader EU cases—Super Bock, Eturas, T-Mobile Netherlands, Dole Food and Banco BPN/BIC Português—show the complementary principles: competition law looks at the substance and economic context of the exchange, not merely its contractual form, and sufficiently strategic information can itself reduce the uncertainty that competitive markets require.