The European Commission has accepted commitments offered by Amazon, which will be legally binding under EU antitrust rules. Amazon’s commitments address the Commissions competition concerns over Amazon’s 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 July 2019, the Commission opened a formal investigation into Amazon’s use of non-public data of its marketplace sellers. In parallel, on 10 November 2020, the Commission started a second investigation to judge if the criteria that Amazon uses to choose the winner of the Buy Box and to enable sellers to offer products under its Prime Programme, lead to preferential treatment of Amazon’s retail business or of the sellers that use Amazon’s logistics and delivery services.
To address the Commission’s competition concerns in relation to both investigations, Amazon initially offered commitments, which the Commission market tested. Following this, Amazon amended the initial proposal and committed to:
- Improve the presentation of a competing Buy Box offer by making it more prominent and to include a review mechanism if the presentation is not attracting adequate consumer attention; increase the transparency and early information flows to sellers and carriers about the commitments and their newly acquired rights, enabling early switching of sellers to independent carriers;
- Set out the means for independent carriers to directly contact their Amazon customers, in line with data protection rules, enabling them to provide equivalent delivery services to those offered by Amazon;
- Improve carrier data protection from use by Amazon’s competing logistics services, in particular concerning cargo profile information;
- Increase the powers of the monitoring trustee by introducing further notification obligations;
- Introduce a centralised complaint mechanism, open to all sellers and carriers in case of suspected non-compliance with the commitments; and
- Increase to seven years, instead of the initially proposed five years, the duration of the commitments relating to Prime and the second competing Buy Box offer.
The Commission found that Amazon’s final commitments will ensure that Amazon does not use marketplace seller data for its own retail operations and that it grants non-discriminatory access to Buy Box and Prime. They will be legally binding on Amazon.
The offered commitments cover all Amazon’s current and future marketplaces in the EEA. They exclude Italy for all the commitments relating to the Buy Box and Prime as the Italian competition authority imposed its own remedy for the Italian market in November 2021.
The final commitments will remain in force for seven years in relation to Prime and the display of the second competing Buy Box offer, and five years for the other commitments. The Commission will supervise an independent trustee to monitor the implementation of, and compliance with, the commitments.
For breach of the commitments, the Commission could impose a fine of up to 10% of Amazon’s total annual turnover, without having to find an infringement of EU antitrust rules, or a periodic penalty payment of 5% per day of Amazon’s daily turnover for every day of non-compliance.
