The European Commission is consulting on commitments offered by Amazon to address competition concerns over its use of non-public marketplace seller data and over a possible bias in granting sellers access to its Buy Box and its Prime programme.
In 2019, the Commission started investigating if Amazon’s use of non-public data from independent retailers selling in its marketplace breached EU competition rules. In 2020, the Commission issued a Statement of Objections outlining its preliminary view that Amazon should not rely on independent sellers’ business data to calibrate its retail decisions, as this distorts fair competition on its platform and prevents effective competition.
In parallel, the Commission opened a second investigation into:
- Amazon’s Buy Box, which prominently displays the offer of one single seller and allows products to be swiftly purchased by directly clicking on a buy button, and;
- Amazon’s Prime programme, which offers premium services to customers for a monthly or yearly fee and allows independent sellers to sell to Prime customers under certain conditions.
The Commission’s preliminary finding was that the rules and criteria for the Buy Box and Prime unduly favour Amazon’s own retail business, as well as marketplace sellers that use Amazon’s logistics and delivery services. This bias may harm other marketplace sellers, their independent carriers, and other marketplaces, as well as consumers that may not be able to view the best deals.
To address the Commission’s competition concerns in relation to both investigations, Amazon has offered the following commitments:
- For marketplace seller data, Amazon commits to refrain from using non-public data relating to, or derived from, the activities of independent sellers on its marketplace, for its retail business that competes with those sellers. This would apply to both Amazon’s automated tools and employees that could cross-use the data from Amazon Marketplace, for retail decisions. The relevant data would cover both individual and aggregate data, such as sales terms, revenues, shipments, inventory related information, consumer visit data or seller performance on the platform. Amazon commits not to use such data to sell branded goods as well as its private label products.
In relation to the Buy Box Amazon commits:
- to apply equal treatment to all sellers when ranking their offers to select the winner of the Buy Box; and
- to display a second competing offer to the Buy Box winner if there is a second offer that is sufficiently differentiated from the first one on price and/or delivery. Both offers will display the same descriptive information and provide for the same purchasing experience. This aims to enhance consumer choice.
Lastly, regarding Prime, Amazon commits:
- to set non-discriminatory conditions and criteria for the qualification of marketplace sellers and offers to Prime;
- to allow Prime sellers to freely choose any carrier for their logistics and delivery services and negotiate terms directly with the carrier of their choice;
- not to use any information obtained through Prime about the terms and performance of third-party carriers for its own logistics services. This aims to ensure that carriers’ data is not flowing directly to Amazon’s competing logistics services.
The commitments cover Amazon’s current and future marketplaces in the EEA. They exclude Italy for the commitments related to Buy Box and Prime because the Italian competition authority has already imposed remedies on Amazon regarding the Italian market.
If agreed, the commitments will remain in force for five years. Their implementation will be monitored by a monitoring trustee who will report regularly to the Commission.
The consultation ends on 9 September 2022.
