On November 16, 2021, the Italian Competition Authority (the “ICA” or the “Authority”) imposed a fine of €134.5 million on Apple Inc. and certain of its subsidiaries (“Apple”) and a fine of €68.7 million on Amazon.com Inc. and certain of its subsidiaries (“Amazon”; together with Apple, the “Parties”) for restricting certain resellers of Apple products, including those of the Apple-owned brand Beats, from accessing the online marketplace of Amazon (“Amazon Marketplace”).[1]

The Complaint

In February 2019 the ICA received a complaint by Digitech, a company active in the marketing of electronic products. The said complaint concerned the online sales system for Apple and Beats branded products through Amazon Marketplace, which is not only the most important marketplace in Italy but also the most widespread platform for Italian consumers to purchase consumer electronics products online.

The complainant asserted that, following an alleged agreement between the Parties, Amazon removed from Amazon Marketplace certain resellers of Apple, which had until then regularly and lawfully offered Apple and Beats products.

The Infringement

The ICA’s investigation focused on certain clauses of an agreement entered into on October 31, 2018 between the Parties, establishing that Amazon could not allow resellers other than those specifically identified in such agreement to use Amazon Marketplace in order to sell Apple and Beats products (the “Agreement”).

The ICA assessed whether, on the basis of the evidence in the casefile, the Agreement actually empowered the Parties to foreclose the resellers excluded from Amazon Marketplace.

It found that, despite the Agreement’s wording and the precautions taken by the Parties to conceal their real intentions (e.g., when drafting internal documents and official correspondence), they planned to introduce via the Agreement a purely quantitative restriction on the number of resellers operating on Amazon Marketplace. The Agreement prevented a substantial number of resellers of Apple and Beats branded products, identified in a discriminatory manner, from accessing a very important distribution channel for online sales, especially for small and medium-sized enterprises. The Agreement therefore had significantly negative effects on competition.

Moreover, the Agreement restricted cross-border sales, as it prevented sales of Apple and Beats products to resellers established outside a select number of EU Member States. These resellers were also discriminated against because of their geographical origin.

Finally, according to the ICA, the Agreement affected the discounts available for Amazon and Beats products sold on Amazon Marketplace.

In particular, by restricting the number of resellers allowed to use Amazon Marketplace, the general level of discounts decreased to the detriment of consumers.

In light of the above, the ICA concluded that the Agreement infringed Article 101(1)(b) and (d) TFEU.

[1] ICA Decision No. 29889, Case I842 – Vendita prodotti Apple e Beats su Amazon Marketplace. By Decision of December 14, 2021, No. 29947, the ICA re-determined the amount of the fines imposed on the Parties as it found that it had committed clerical errors in its calculation. As a result, the final fines amounted to €114,681,657 for Apple and €58,592,754 for Amazon.