On November 10, 2020, the Commission sent a Statement of Objections (“SO”) to Amazon, alleging that Amazon abused its dominance on the market for provision of marketplace services in France and Germany, by accumulating and using sensitive data of independent retailers to benefit Amazon’s own retail business.[1] On the same day, the Commission announced that the investigation into Amazon’s e-commerce business practices was spun-off into a standalone probe.


In July 2019, following the Commission’s 2015 inquiry into the e-commerce sector,[2] the Commission announced the opening of a formal investigation into Amazon’s ‘dual role’ as (i) a marketplace service provider for independent retailers that sell products directly to consumers on Amazon’s platform; and (ii) a competing retailer selling the same or similar products on the same platform.[3]

The Commission ultimately decided to split the investigation into two standalone probes: one focusing on Amazon’s use of independent retailer data; and the other focusing on Amazon’s e-commerce business’ ‘Buy Box’ and ‘Prime’ label features.

Amazon’s Use of Retailer Data

According to the SO, Amazon’s retail business has direct, automatic access to the real-time, non-public, competitively sensitive business data of over 800,000 active independent retailers and more than 1 billion products, that Amazon continuously collects on its platform.[4] These data include revenues, number of visits, orders, and shipped units, past performance, and consumer claims and guarantees.

The SO reflects preliminary concerns that Amazon uses these data to benefit its own retail activities, including to determine its strategic business decisions such as product launches and targeted price discounts. Through its use of these data, Amazon avoids the normal risks of retail competition on its platform.

The Amazon Investigation is therefore yet another prime example of the general flurry of enforcement activities concerning vertical integration and “self-preferencing” in the digital era. While historic Commission precedents[5] and the Guidelines on non-horizontal mergers clearly provide that self- preferencing is not anticompetitive in and of itself, the Commission’s recent enforcement record, including in the seminal Google Shopping decision, fails to clarify the exact legal test that is relevant for the assessment. It will, however, be interesting to see how the Commission will deal with the possible procompetitive effects of Amazon’s conduct, including that it enables Amazon’s retail business to compete more effectively against well- established, and often much larger, retailers.

Amazon’s Buy Box and Prime Label

Amazon also provides logistics and delivery services to a number of retailers active on its platform. While Amazon is the default logistics and delivery services provider to its own retail business, third-party retailers can also opt-in for this service, called ‘Fulfillment by Amazon.’ The Commission’s probe will assess whether Amazon favors retailers that use Amazon’s logistics and delivery services by selecting them as “winning” retailers for the Buy Box and Prime label features.[6]

The Buy Box feature is prominently displayed on Amazon’s product page and allows customers to add items from the “winning” retailer directly into their shopping carts. While Amazon also displays offers from competing retailers on the product page, these offers do not enjoy the same level of prominence. Buy Box provides a competitive advantage as it generates the vast majority of sales on Amazon.

The Prime label enables retailers to offer products to users subscribed to Amazon’s Prime loyalty program. The access to Prime customers likewise offers a competitive edge because Prime customers generate more sales than non-Prime users.

The Platform Saga Continues

Amazon has long been subject to antitrust enforcement. It already settled investigations in Germany and Austria, offering improved terms and conditions for online retailers across Europe.[7] The Amazon investigations demonstrate the Commission’s ongoing enforcement efforts in today’s platform economy and reflect Vice- President Vestager’s general concerns relating to businesses’ and consumers’ increasing dependence on allegedly “dominant” online platforms.[8]

[1]      European Commission Press Release, November 10, 2020, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077. The case is referenced herein as AT.40703 – Amazon.

[2]      The results of the inquiry were formalized in the European Commission’s Final Report on the E-Commerce Sector Inquiry, May 10, 2017, available at: https://ec.europa.eu/competition/antitrust/sector_inquiry_final_report_en.pdf.

[3]      European Commission Press Release, July 17, 2019 available at: https://ec.europa.eu/commission/presscorner/detail/en/IP_19_ 4291.

[4]      Statement by Executive Vice-President Margarethe Vestager on Statement of Objections to Amazon for the use of non-public independent seller data and second investigation into its e-commerce business practices, November 10, 2020, available at: https://ec.europa.eu/commission/presscorner/detail/en/ STATEMENT_20_2082.

[5]      See, Commission Decision not to oppose the production by Tabacalera of its own cigarette filters, of May 8,1989, available at: https://ec.europa.eu/commission/ presscorner/detail/en/IP_89_330.

[6]      The Commission’s investigation closely follows an ongoing Italian investigation assessing whether Amazon discriminates against independent retailers using alternative logistics and delivery services by placing those sellers’ products further down a list of search results on its website (see, Press Release, Italian Competition Authority, April 16, 2019, available at: https://en.agcm.it/en/media/press-releases/2019/4/A528. The Italian investigation is ongoing, but was delayed to April 20, 2021, due to the Covid-19 pandemic).

[7]      See, Press Release, Bundeskartellamt, July 17, 2019, available at: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/ Pressemitteilungen/2019/17_07_2019_Amazon.html; Press Release Austrian Bundeswettbewerbsbehorde, July 17, 2019, available at: https://www.bwb.gv.at/en/news/detail/news/bwb_informs_amazon_modifies_its_terms_and_conditions-1. The authorities’ main theories of harm were exploitative abuse, unfair trading terms, and exclusionary abuse. A wide range of contractual terms (including clauses on termination and blocking of seller accounts, parity, confidentiality, and choice of law and court of jurisdiction) was regarded as abusive. To accommodate these concerns, Amazon revised its business terms across Europe (and even worldwide).

[8]      Similar concerns were also recently included in the US House Judiciary Committee’s report following its investigation of competition in digital markets, which saw the CEOs of Apple, Amazon, Google, and Facebook testify before Congress over the summer. The full report is available at https://www. washingtonpost.com/technology/2020/07/29/apple-google-facebook-amazon-congress-hearing/.