The Bundeskartellamt's Amazon Decision
25 September 2019
19.00h (by teleconference / in-person)(CET) - 20.30h (cocktail to 9pm)
Dr Felix Engelsing, Director
Chairman, 2nd Decision Division
In-person: Marriott Bonn
Platz der Vereinten Nationen
|CPD:||Accredited for 1.5 hours CPD (UK SRA)|
|Registration closes:||3pm (CET) 25 September|
|Joining details:||Sent to registered participants - 4.30pm 25 September|On 17 July 2019 Germany’s antitrust agency (‘the Bundeskartellamt’) closed its abuse of dominance investigation of Amazon’s business terms and certain practices towards sellers on its German marketplace, amazon.de.
Amazon agreed to implement various changes to its Business Solutions Agreement (‘BSA’) within 30 days in Germany but also for all European marketplaces and worldwide, including in North America and Asia.
On the same day, the Austrian competition authority closed its parallel investigation. DG COMP also launched an in-depth investigation into Amazon’s dual role as a retailer and a marketplace for independent sellers.
Launched only in November 2018, the Bundeskartellamt’s investigation focused on a broad range of the BSA’s provisions and certain practices affecting sellers on amazon.de. These included the jurisdictional clause (Luxembourg), a lack of transparency of the terms of business, termination and blocking of sellers' accounts, returns and reimbursements, enforcement procedures and the rules on products reviews and sellers’ ratings.
The Bundeskartellamt’s investigation relied primarily on German abuse of dominance rules but also considered Article 102 TFEU.
The allegations relating to the self-preferencing of Amazon Retail - for ex., the cancellation and blocking of seller accounts and sellers’ ratings - were examined (i.a.) under an exclusionary abuse test.
As to the other allegations, the Bundeskartellamt applied the same exploitative abuse test and judicial precedents - i.e. that Amazon imposed inappropriate business terms on sellers - as in its February 2019 Facebook Decision.
According to the Bundeskartellamt, when examining the impugned BSA provisions and practices the deciding factor was whether, on the basis of an overall assessment under both German antitrust and non-antitrust rules, these exploitative terms and conditions significantly restricted the sellers’ activity.
Dr. Felix Engelsing has kindly agreed to participate in this first in-person / webinar 'Chatham House rule' discussion of the Bundeskartellamt’s Amazon case, a possible benchmark for resolving topical antitrust concerns quickly in the digital economy well beyond Germany.
List of participants (updated 24 September)
'Bundeskartellamt obtains far-reaching improvements in the terms of business for sellers on Amazon’s online marketplaces' (17.07.19)
Bundeskartellamt's Amazon case summary (17.07.19)
'European Commission opens investigation into possible anti-competitive conduct of Amazon' (17.07.19)
Bundeskartellamt's Facebook Decision (06.02.19)
'The Bundeskartellamt's Facebook Decision: a very "German" ruling?' Julia Topel, Bundeskartellamt, Brussels Matters (11.04.19)
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