Competition Law: On the Agenda -The Amazon "Case" 

In the last few days we have witnessed a series of statements, both from the Commissioner Margrethe Vestager and from the responsible of the commission's competition unit for e-commerce, on how Amazon uses merchant’s data.

Around a week ago, at the EC press conference on Luxembourg McDonald's State Aid Case, the Commissioner, when asked about the antitrust concerns that Amazon raised in both the EU and the US, said that the EC started a preliminary investigation into its commercial practices.

It has been noted several times that a formal investigation process has not yet been opened but we know that Amazon, after Google, is another tech giant that worries the EC. Stacy Mitchell, co-author of the report Amazon’s Stranglehold, had told to Forbes, about a year ago, that “Amazon uses the data it gathers about customers buying from third-party sellers to undermine those sellers as competitors”. Also in 2017, the EC concluded a report on the e-commerce sector, in which it stated that “with the growth of e-commerce, certain business practices that raise competition concerns have emerged”.

The EC sent questionnaires to merchants to know to what extent the way that the world's largest online retailer collects data from small operators it hosts restricts the competition in the market, since Amazon is also competing with them. This may have implications, for example, on the pricing of Amazon's own products.

Fines applicable to EU competition law infringements can go up to 10% of the overall annual turnover of the undertakings. According to The New York Times, Vestager’s rulings against the US giants “have positioned the European Union, rather than Washington, as the world’s de facto Big Tech regulator” (such as, the 4.3 bilion-euro record fine applied to Google this year, for using Android to consolidate its search engine dominance position). Regarding the access to data, Germany and France published a joint report in 2016 and, in the same year, the German Competition Authority has initiated a proceeding against Facebook, regarding its contract terms for using consumer data.

There is certainly a new competitive environment and new anti-competitive risks associated with the access of data in the tech world. This is an issue we will continue to follow.

Originally published on 1 October 2018 on the Abreu Advogados website

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