Summary of Commission Decision of 5 September 2023 relating to a decision pursuant to Article 3 of Regulation (EU) No 2022/1925 (Cases DMA.100018 – AMAZON – ONLINE INTERMEDIATION SERVICES – MARKETPLACES; DMA.100016 – AMAZON – ONLINE ADVERTISING SERVICES) (notified under document number C(2023) 6104)
Date: 2023-09-05
Institutions: Directorate-General for Competition, European Commission
Subjects: advertising, competition law, digital economy, digital single market, electronic commerce, provision of services, trade intermediary








C_202300905EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/905


15.11.2023







            SUMMARY OF COMMISSION DECISION
         
of 5 September 2023
         
relating to a decision pursuant to Article 3 of Regulation (EU) No 2022/1925
(Cases DMA.100018 – AMAZON – ONLINE INTERMEDIATION SERVICES – MARKETPLACES; DMA.100016 – AMAZON – ONLINE ADVERTISING SERVICES)


(notified under document number C(2023) 6104)


(Only the English text is authentic)
(C/2023/905)


On 5 September 2023, the Commission adopted a decision pursuant to Article 3 of Regulation (EU) No 2022/1925 of the European Parliament and of the Council
             (1)
. In accordance with the provisions of Article 44 of Regulation (EU) No 2022/1925, the Commission herewith publishes the names of the parties and the main content of the decision, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1.   INTRODUCTION









(1)


The attached Designation Decision (‘the Decision’) is designating Amazon.com (‘Amazon’) as a gatekeeper pursuant to Article 3 of Regulation (EU) No 2022/1925 (‘DMA’), in relation to two core platform services (‘CPSs’), which constitute an important gateway for business users to reach end users, based on the Commission’s assessment of the information provided by Amazon (2).




2.   PROCEDURE









(2)


On 3 July 2023, Amazon notified the Commission, pursuant to Article 3(3), first subparagraph, DMA, that it meets the thresholds laid down in Article 3(2) DMA in relation to the following CPSs: (i) its online intermediation service provided through the ‘Amazon Store’; and (ii) its online advertising service Amazon Advertising.












(3)


On 24 July 2023, the Commission sent Amazon a letter concerning Amazon’s notification (‘the Letter’), outlining its preliminary views on Amazon’s notification.












(4)


On 31 July 2023, Amazon submitted written observations in response to the Commission’s Letter.




3.   LEGAL FRAMEWORK









(5)


The DMA establishes a set of narrowly defined objective criteria for qualifying a large online platform as a gatekeeper. Designation is to be made in relation to one or more CPSs provided by the undertaking that are an important gateway for business users to reach end users within the meaning of Article 3(1)(b) DMA.












(6)


According to Article 3(1) DMA, the Commission is to designate an undertaking as a gatekeeper if it fulfils three cumulative requirements, namely: (a) it has a significant impact on the internal market; (b) it provides a CPS which is an important gateway for business users to reach end users; and (c) it enjoys an entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future. Article 3(2) DMA lays down a presumption that those requirements are satisfied where certain quantitative thresholds are met, namely the company’s turnover or market capitalisation as well as the numbers of end users and business users of a particular CPS in each of the last three financial years.




4.   THE COMMISSION’S ASSESSMENT









(7)


The Commission found, following an assessment of the information provided by Amazon, that the following notified services constitute CPSs within the meaning of Article 2 DMA and are individually an important gateway for business users to reach end users as referred to in Article 3(1)(b) DMA:






a.


Amazon’s online intermediation service Amazon marketplace;










b.


Amazon’s online advertising service Amazon Advertising.
















(8)


With respect to Amazon marketplace, in line with the information provided by Amazon, the Commission considers that Amazon provides, through ’Amazon Store’, an online intermediation service for third-party sellers (‘Amazon marketplace’) which fulfils the definition laid down in Article 2(2) DMA. Consequently, Amazon marketplace constitutes an online intermediation service and a CPS.












(9)


As regards ‘Amazon Prime’, the Commission does not agree with Amazon’s claim that ‘Amazon Prime’ is merely a membership programme (3). Rather, ‘Amazon Prime’ is a paid optional service consisting of a bundle of benefits, such as access to ‘Prime Video’, ‘Amazon Music’, and free and faster delivery. Nor can the Commission accept Amazon’s claim that some of these benefits may constitute distinct services, while others are inextricably linked to its online intermediation CPS (4). Consequently, the Decision considers that ‘Amazon Prime’ does not form part of the Amazon marketplace CPS.












(10)


The Commission further considers that the online intermediation CPS Amazon marketplace constitutes a single CPS notwithstanding the existence of country-specific domains for the localised stores that Amazon operates and that can be accessed through dedicated existing and future EU and non-EU domains. Regarding those domains, the Commission considers that the domains under which Amazon marketplace is or will be operated and through which the service is or will be offered are not in themselves determinative of whether that service is offered to business and end users in the Union. The Commission considers that, for the provisions of the DMA to be effective, they should apply to CPSs which target business users and end users established or located within the internal market (5). The Decision considers that this will be the case when it is apparent that the undertaking ‘directs its activities’ to business users established, or end users established or located, in the Union, irrespective of whether those activities are directed through dedicated EU or non-EU domains.












(11)


With respect to Amazon Advertising, the Decision considers that, despite the fact that Amazon Advertising and the Amazon marketplace CPSs are provided, to a certain extent, in an integrated manner, Amazon Advertising constitutes a distinct CPS from the Amazon marketplace CPS. This is also in line with Amazon’s alternative plausible delineation that Amazon put forward in its notification. Furthermore, the Decision considers that the online advertising service Amazon Advertising comprises all the advertising services, tools, features, interfaces, and functionalities that interact with each other, the ultimate purpose of which is exposing end users to advertisements on Amazon’s own services and third-party advertising inventory.












(12)


The findings in the Decision are based on the information available to the Commission at the time of adoption. Should there be any substantial change in any of the facts on which this Decision is based, or if this Decision is based on incomplete, incorrect or misleading information, the Commission may reconsider or amend the Decision pursuant to Article 4(1) DMA.




5.   CONCLUSION









(13)


For the reasons set out above, the Decision designates Amazon as a gatekeeper in relation to: (i) Amazon’s online intermediation service Amazon marketplace; (ii) Amazon’s online advertising service Amazon Advertising.






(1)  Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ L 265, 12.10.2022, p. 1).

(2)  Notification of 3 July 2023 made pursuant to Article 3(3) DMA.

(3)  Form GD, paragraph 16.

(4)  Amazon’s reply of 31 July 2023 to the Commission’s letter of 24 July 2023, p. 2 and 3.

(5)  Recitals 7 and 8 of the preamble to the DMA.


ELI: http://data.europa.eu/eli/C/2023/905/oj
ISSN 1977-091X (electronic edition)