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Platforms remain in the focus of the antitrust authorities: Amazon vs. marketplace merchants? The Federal Cartel Office is investigating.

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Germany

The German Federal Cartel Office (FCO) is currently investigating whether Amazon influences the pricing of merchants on the Amazon marketplace. According to the FCO, it received numerous complaints by merchants about Amazon.

The investigation is one of a number of antitrust measures with regard to powerful platforms (e.g. Facebook, booking.com). The German legislator has also become active and has included special provisions for powerful platforms in the upcoming antitrust law. Fieldfisher will offer a webinar in German on 3 November 2020 about this (registration).
 
Background: Current investigations

The complaints of the merchants on the Amazon marketplace were based primarily on the fact that offers and products were locked for reasons that were not comprehensible. Despite complaints from the merchants, these blocks were not lifted (in time). According to the complaints, interventions by Amazon regarding the blocking of products are problematic in particular. These were often justified with the argument that Corona-related price peaks needed to be prevented.
In this regard, the president of the FCO, Andreas Mundt, explains: "Currently we are investigating whether and how Amazon influences the pricing of the merchants on the marketplace." and "We want to understand whether there is a systematic price monitoring in general, how it works and which intervention possibilities Amazon reserves for itself".
 
Previous proceedings against Amazon

In the past, the FCO has already been active regarding Amazon. In 2013, the Federal Cartel Office prohibited Amazon from enforcing "price parity". Essentially, this prohibited retailers from offering all products that were offered on Amazon as well, at lower prices elsewhere on the internet.
In 2019, due to antitrust concerns of the FCO, Amazon amended its general terms and conditions ("GTC"), in order to strengthen the rights of third-party traders in particular. As a result, the abuse proceedings against Amazon at that time were closed.
 
Outlook for the future

The FCO's approach is in line with efforts by a number of national and international competition authorities in relation to the large digital companies. In this context, the competition authorities are also trying to ensure competition in the "digital world" to the best extent possible.
For example, the German legislator included special provisions for powerful platforms in the tenth amendment of the German Competition law (not yet in force). In addition, European Competition Law could be amended in this way. The European Commission is currently testing this under the keyword "New Competition Tool".
Furthermore, the "P2B Regulation" intends to ensure more transparency and fairness for parts of the platform models.

Links

FCO, press release from 26 November 2013: Amazon abandons price parity clauses for good

FCO, press release from 17 July 2019: Bundeskartellamt obtains far-reaching improvements in the terms of business for sellers on Amazon’s online marketplaces

FCO, 04.10.2018: What can and should anti-trust abuse control do? (German version only)

Handelsblatt, 12.08.2020: Amazon starts new offensive regarding delivery of food (German version only)

The Platform to Business Regulation is here! - non-compliant terms could be void

The P2B Regulation entered into force: New obligations for online-platforms and search engines

Handelsblatt, 31.08.2020: Attack on the monopoly: Conflict between Amazon and marketplace merchants escalates (German version only)

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