On July 14, 2022, the Commission invited comments on Amazon’s proposed commitments, offered under Article 9 of Regulation 1/2003, in two investigations concerning practices that allegedly advantaged its own services on its online marketplace, contrary to Article 102 TFEU. The invitation for comments is open until September 9, 2022.

According to the Commission, the investigations concern Amazon’s multiple roles on its marketplace: as the platform provider, as a retailer competing with independent sellers, and as a provider of ancillary fulfilment services for sellers on its platform.[1] In the first case, opened in July 2019, the Commission alleged that Amazon’s access to third-party seller data allowed it to alter its own retail offers to the detriment of other marketplace sellers. In the second, opened in November 2020, the Commission was investigating whether Amazon’s criteria for selecting the sellers featured in the “Buy Box” or who could serve Amazon Prime users unduly favored Amazon’s retail or logistics services.

The Commission said that Amazon has offered the following commitments for a five-year period:

  • Marketplace data. Not to use third-party seller data for its competing retail
  • Buy Box. To treat all sellers equally when selecting featured offers for the Buy Box, and to display a second offer within the display.
  • To apply non-discriminatory conditions to determine when sellers are eligible for Prime and get the Prime label, to allow Prime sellers choice over their logistics providers and to negotiate with said providers, and not to use information obtained through Prime about third-party carriers for its own logistics services.

According to the Commission, most of the commitments offered by Amazon mirror the obligations it would be subject to as a “gatekeeper” under the DMA.[2] As a gatekeeper, Amazon would be prohibited from using data generated or provided by third-party sellers and carriers for its own competing products and services.[3] Amazon would also be prevented from ranking its products more favorably than similar third-party products. It would also have to apply transparent, fair, and nondiscriminatory conditions to such ranking.[4] On the other hand, Amazon’s commitment to refrain from requiring Prime sellers to use Amazon’s own logistics services may not have been required under the DMA.[5]

The Commission proceedings are similar to investigations undertaken by various EU Member States[6] and non-EU countries.[7] If accepted, the EU commitments could open a path for consistent settlements in these cases.

[1]      See Commission Press Release IP/20/2077, “Commission sends Statement of Objections to Amazon for the use of non-public independent seller data and opens second investigation into its e-commerce business practices,” November 10, 2020.

[2]      The Regulation on contestable and fair markets in the digital sector, also known as the Digital Markets Act (“DMA”) was adopted by the European Council on July 18, 2022, and is expected to come into force in October 2022. See also Cleary Antitrust Watch, “Digital Markets Act Final Text Approved in European  Parliament and European Council,” July 18, 2022.

[3]      Article 6(2) DMA.

[4]      Article 6(5) DMA.

[5]      While Article 5(8) of the DMA prohibits gatekeepers from conditioning the use of a core platform service on users using another of its core platform services, Amazon’s fulfillment services would not appear to constitute a “core platform services” within the meaning of the Act.

[6]      The German Federal Cartel Office is investigating Amazon under its rules for large digital companies, in addition to investigations on Amazon’s price control mechanisms and brand product rules. The Italian Competition Authority also investigated Amazon’s Buy Box and Prime program practices, leading to a €1.1 billion fine in December 2021 and similar commitments being undertaken by Amazon. Amazon previously settled other investigations in Germany and Austria concerning its business terms for sellers on its marketplace.

[7]      For example, the UK’s CMA opened an investigation into Amazon “looking into similar concerns” on July 6, 2022 (See CMA Press Release, “CMA investigates Amazon over suspected anti-competitive practices,” July 6, 2022).