Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40703 Amazon – Buy Box and AT.40462 - Amazon Marketplace (C(2022) 5078) 2022/C 278/06
Date: 2022-07-20
Institutions: Directorate-General for Competition, European Commission
Subjects: competition policy, control of restrictive practices, data protection, dominant position, electronic commerce, restrictive trade practice, retail trade, trade information








C_2022278EN.01000801.xml










20.7.2022   


EN


Official Journal of the European Union


C 278/8






Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40703 Amazon – Buy Box and AT.40462 - Amazon Marketplace
(C(2022) 5078)
(2022/C 278/06)
1.   Introduction









(1)


According to Article 9 of the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1), the Commission may decide – in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment – to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.




2.   Summary of the Case









(2)


On 10 November 2020, the Commission adopted a statement of objections in case AT.40462 – Amazon Marketplace within the meaning of Article 7 of Regulation (EC) No 1/2003 concerning alleged infringements of Article 102 of the Treaty on the Functioning of the European Union (the ‘Treaty’) and of Article 54 of the Agreement on the European Economic Area (‘EEA Agreement’) by Amazon.com, Inc., Amazon Europe Core Sarl, Amazon Services Europe Sarl, and Amazon EU Sarl (together referred to as ‘Amazon’) (the ‘Statement of Objections’).












(3)


The Statement of Objections expressed the preliminary conclusion that Amazon would have abused its dominant position as the provider of marketplace services to sellers, in breach of Article 102 of the Treaty, by systematically relying on large quantities of non-public data that it obtains as a result of the activities of third party sellers on its marketplace, to the benefit of Amazon’s own retail business, which directly competes with those sellers.












(4)


In particular, Amazon’s automated systems and employees running its retail operations (‘Amazon Retail’) would rely on such third party seller data for the purposes of identifying products to be launched, starting and ending their sale, identifying suppliers, negotiating wholesale prices and terms, planning and managing inventories, and setting the prices of Amazon’s own retail offers.












(5)


The Statement of Objections does not take issue with Amazon using third party seller data for the purposes of improving its marketplace operations and marketplace services to sellers.












(6)


Furthermore, on 15 June 2022, the Commission adopted a preliminary assessment in case AT.40703 – Amazon Buy Box within the meaning of Article 9(1) of Regulation (EC) No 1/2003 concerning alleged infringements of Article 102 of the Treaty and of Article 54 of the EEA Agreement by Amazon (the ‘Preliminary Assessment’).












(7)


The Preliminary Assessment expressed the preliminary concern that Amazon would have abused its dominant position in breach of Article 102 of the Treaty by artificially favouring its own retail offers and offers of marketplace sellers that use Amazon’s logistics and delivery services (the so-called ‘Fulfilment by Amazon’ or ‘FBA’ services), to the detriment of other marketplace sellers and consumers, when (i) selecting the single prominently displayed offer on Amazon’s product detail page (the winner of the ‘Buy Box’); and (ii) enabling sellers to offer products to users of Amazon’s loyalty programme (the ‘Prime programme’) under the Prime label.












(8)


The Buy Box prominently displays the offer of one retailer for a specific product and allows customers to add that item directly into their shopping carts. Winning the Buy Box is crucial to Amazon marketplace sellers as the vast majority of consumers only view the Buy Box and only buy the offer displayed in the Buy Box. The unequal conditions and criteria of selection of the Buy Box winner may thus artificially increase traffic to, and purchases of, offers by Amazon’s retail arm and by sellers using Amazon’s FBA services, thereby distorting competition on the Amazon marketplaces.












(9)


Reaching Prime users is important to sellers as the number of Prime users is continuously growing, they are typically more loyal and tend to generate more sales on Amazon’s marketplaces than non-Prime users, and because sellers’ eligibility to the Prime programme impacts their ability to win the Buy Box. Amazon’s conditions and criteria to select sellers and offers eligible to the Prime label would favour Amazon Retail and sellers that use Amazon’s FBA services, thereby distorting competition on the Amazon marketplaces. The unequal conditions and criteria of the Prime programme include those relevant to the choice, contractual terms and performance of the logistics service providers of independent sellers seeking eligibility to Prime.




3.   The Main Content of the Offered Commitments









(10)


The parties subject to the proceedings do not agree with the Commission’s Statement of Objections and Preliminary Assessment. They have nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to address the Commission’s competition concerns. The key elements of the commitments are as follows.












(11)


In order to address the Commission’s concerns set out in the Statement of Objections in case AT.40462 – Amazon Marketplace, Amazon commits not to use non-public data provided by third party sellers on its marketplace or derived through third party sellers’ use of Amazon’s marketplace services or related marketplace services such as payment and fulfillment services, where such data is not available to those third party sellers, for the purposes of Amazon’s own retail operations, in competition with those third party sellers.












(12)


In particular, Amazon commits not to use such third party seller data either via Amazon’s automated systems or via its employees, whether for the purposes of selling branded goods or for the purposes of selling its private label products. The relevant data covers aggregated, individual, anonymized and personal data, whether in raw form or processed.












(13)


In order to address the Commission’s concerns set out in the Preliminary Assessment in case AT.40703 – Amazon Buy Box, Amazon commits to the following:






i.


apply non-discriminatory conditions and criteria for the purposes of identifying the offer displayed in the Buy Box (the ‘Featured Offer’). These would apply to all applicable parameters and weightings in order to establish a level-playing field in the competition between sellers for the Buy Box;










ii.


display at least one competing offer next to the Featured Offer where available and different on price/delivery time from the Featured Offer. These offers will display on an equal basis the same descriptive information and operate at complete parity with respect to purchasing possibilities;










iii.


set non-discriminatory conditions and criteria for the Prime eligibility of third party sellers and offers, to ensure parity between all sellers;










iv.


allow Prime sellers to freely choose carriers and negotiate rates and commercial terms with those carriers;










v.


not use any data relating to the terms or performance of third party carriers for the purposes of Amazon’s own logistics operations.
















(14)


Amazon offers to apply these commitments to all current and future Amazon marketplaces in the EEA, with the exception of the commitments under paragraph (13) which, in view of the decision of 30 November 2021 of the Italian Competition Authority in case A528, would not apply to Italy.












(15)


The commitments are published in full in English on the website of the Directorate-General for Competition at:
https://ec.europa.eu/competition-policy/index_en




4.   Invitation to make Comments









(16)


Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring binding the commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition.












(17)


In accordance with Article 27(4) of Regulation (EC) 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than 9 September 2022. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced by a non-confidential summary or by the words ’business secrets’ or ’confidential’.












(18)


Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution.












(19)


Observations can be sent to the Commission under reference numbers AT.40703 – Amazon – Buy Box and AT.40462 - Amazon Marketplace either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu and comp-c6-mail@ec.europa.eu), or by post, to the following address:





European Commission




Directorate-General for Competition




Antitrust Registry




1049 Bruxelles/Brussel




BELGIQUE/BELGIË










(1)  OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.