On July 17, 2019 the BKartA announced the settlement with Amazon and closed the abuse of dominance proceedings. Besides a press release (here), it also published a case summary (here). On the same day, the European Commission opened an investigation into possible anti-competitive conduct of Amazon (here).
Heinz & Zagrosek has been representing a dealer of sewing machines as complainant in the German proceedings.
The BKartA investigated Amazon’s liability provisions; termination and blocking of seller accounts; court of jurisdiction (competent court only in Luxembourg); returns and reimbursement; product information and rights of use; confidentiality; transparency; product reviews and seller ratings; etc.
The fact that the BKartA could convince Amazon to change and amend its t&cs in a relatively short period (compared to other abuse of dominance proceedings the case has been closed within ca. 7 months) is very positive. It is quite remarkable that the FCO could obtain a global solution, i.e., not only limited to Germany, the territory of its jurisdiction. The amendments seem to cover most of the complaint topics, but of course it will be crucial how Amazon will implement these promised changes in reality. The devil may well be in the details in this respect, and the FCO is willing to reopen proceedings should Amazon fall short of properly implementing the changes.
In Germany, the proceedings were not predominantly about its dual role as platform provider and dealer – that is now the subject of the European Commission proceedings – but more about exploitative abuse of dealers active on the platform through imposing unfair trading terms.
But the case also involved impeding and foreclosing dealers, in particular through leveraging its dominant platform position into its own retail sales: Amazon only allows product reviews to be posted on its platform if generated by its own “Amazon Vine” service, not by third-party review service providers. At the same time, it prevents platform dealers from using the Vine service, which is only available for suppliers of Amazon’s own retail activities (vendors).
Here Amazon has now promised to grant access to the Amazon Vine service to more dealers and offer services for the review of new products, which is very positive. However, the BKartA did not decide on how to deal with Amazon prohibiting the posting of product reviews from third-party services and the retroactive deletion of already posted reviews, which also formed part of complaint and concerns legitimate investments made by dealers in this area. The BKartA did obviously not want to hold up the overall informal “settlement” package and therefore refrained from reviewing these aspects in depth. Instead, it will await the results of the currently ongoing user review sector inquiry (see our blog here), which also touches upon the subject. The topic is still very important for online dealers. The devil may well be in the details in this respect, and the BKartA is willing to reopen proceedings should Amazon fall short of properly implementing the changes.
It is not unusual that the national competition agencies and the European Commission coordinate the scope and timing of their proceedings – given that there are parallel competences in applying EU competition law, while the Commission may ultimately take over a case. Here it was efficient to coordinate the substance, so as to avoid the agencies reviewing the same questions in substance.