December saw the Commission nearing the end of its investigations against Meta’s and Amazon’s alleged self-preferencing practices.

Statement of Objections sent to Meta over alleged abusive practices benefiting Facebook Marketplace

On December 19, 2022, the Commission sent a Statement of Objections (“SO”) to Meta (previously Facebook) regarding the company’s alleged abusive practices benefiting Facebook Marketplace, its online classified ads service, under Article 102 TFEU.[1]

The SO was issued a year and a half after the Commission’s June 4, 2021 decision to open a formal investigation into Meta’s data-related practices concerning Facebook Marketplace and pursues two main theories of harm.[2]

First, the Commission preliminarily found that Meta’s decision to give Facebook users automatic access to Facebook Marketplace constituted anticompetitive tying. Second, the Commission preliminarily found that Meta’s terms and conditions, which allowed Meta to use ads-related data from competing online classified ads services that advertise on Meta for the benefit of Facebook Marketplace, constituted unfair trading conditions.

Meta will now have the opportunity to contest these preliminary findings. The Commission will then determine whether to adopt an infringement decision against the company.

Commission accepts Amazon commitments: DMA enforcement foreshadowed?

On December 20, 2022, the Commission accepted the commitments offered by Amazon on two different investigations concerning: (i) Amazon’s alleged use of non-public marketplace seller data; and (ii) Amazon’s alleged discriminatory conduct concerning its Buy Box and Prime programs.[3] [4]

To resolve the investigation into marketplace seller data, Amazon committed to refrain from using non-public seller data to the benefit of its retail operations.

To resolve the Buy Box and Prime investigation, Amazon committed to: (i) apply non-discriminatory conditions and criteria for the selection and ranking of sellers’ offers to appear in the Buy Box; (ii) display a second Buy Box for products with differentiated prices and/or delivery; (iii) allow Prime sellers to choose any carrier for their logistics and delivery services and to negotiate terms directly with said carriers; and (iv) avoid using any information obtained through Prime about the terms and performance of third-party carriers for its own logistics services. Executive Vice-President and EU Commissioner for Competition Margrethe Vestager noted that “the data commitments definitely seem to match what would be asked within the Digital Markets Act.”[5] Thus, the commitments offered by Amazon could provide a template for other gatekeepers to consider once the Digital Markets Act becomes applicable on May 2, 2023.

[1]      Commission Press Release IP/22/7728, “Antitrust: Commission sends Statement of Objections to Meta over abusive practices benefiting Facebook Marketplace,” December 19, 2022.

[2] Commission Press Release IP/21/2848, “Antitrust: Commission opens investigation into possible anticompetitive conduct of Facebook,” June 4, 2021. As reported in our June 2021 EU Competition Law Newsletter. While the Commission’s initial investigation focused on alleged breaches of both Articles 101 and 102 TFEU, the SO solely focuses on the Article 102 TFEU aspects.

[3]      Case AT.40462 – Amazon Marketplace and Case AT.40703 – Amazon Buy Box. See our November 2020 EU Competition Law Newsletter on the investigations, and our July 2022 EU Competition Law Newsletter on the Commission’s invitation to third parties for reviews on Amazon’s commitments.

[4]      Commission Press Release IP/22/7777, “Antitrust: Commission accepts commitments by Amazon barring it from using marketplace seller data, and ensuring equal access to Buy Box and Prime,” December 20, 2022.

[5]      MLex, “Amazon data commitments match DMA obligation, EU’s Vestager says,” December 20, 2022.