Amazon cases on the move: Bundeskartellamt closes proceedings while European Commission opens formal investigation

online shopping cartoon

The 17th of July has been quite the day for Amazon, at least when it comes to antitrust. Firstly, the German Competition Authority (Bundeskartellamt) has closed its abuse of dominance proceedings against Amazon in return for concessions from the online marketplace. Secondly, the European Commission announced that it was opening a formal investigation into possible anti-competitive conduct by Amazon. This blog post takes a closer look at these two closely related developments.

What unites the investigations by the Bundeskartellamt and the Commission is their focus on Amazon’s ‘dual role’: one the one hand, Amazon offers a marketplace for third-party sellers to offer their products to consumers; on the other hand, Amazon offers its own products through its marketplace. This dual role may incentivize Amazon to make life difficult marketplace sellers that it also competes with as a retailer. However, each investigation looks at markedly different practices, and has—for now—ran a different course. Let’s look at each in turn.

The Bundeskartellamt’s investigation

On 29 November 2018, the Bundeskartellamt announced that it was opening proceedings against Amazon (for context, see the CoRe Blog post on this topic). The authority started looking into a number of business terms between Amazon and third-party sellers (e.g. regarding liability and jurisdiction), as well as business practices (in particular the termination and blocking of seller accounts). Now, the Bundeskartellamt has accepted concessions by Amazon to end the investigation. Amongst others, Amazon has offered to do the following:

  • Amazon will be more transparent regarding the terms that govern the online platform by making them easier to find, and by announcing any changes to those terms with 15 days’ notice.
  • Amazon has abandoned contract terms making Luxembourg the exclusive court of jurisdiction for Europe, making it possible for sellers—under certain conditions—to enforce their rights against Amazon in their domestic courts. (However, Amazon’s requirement that Luxembourg law governs business relations will still apply.)
  • Amazon will rebalance its liability obligations: where the marketplace previously allocated all liability to sellers, it will now be liable to the same extent as sellers for intent or gross negligence and for any breach of major contractual obligations.
  • One result of the previous concession is that sellers making use of Amazon’s fulfillment program will only have to indemnify customers for returned products when Amazon proves that the returned product is in fact the one sent by the seller. Moreover, sellers will now be able to demand that products returned to Amazon are actually returned to them, and to object to Amazon’s reimbursement decision within 30 days.
  • Amazon’s right to terminate contractual relations with sellers/block them will be circumscribed: (i) in case of ordinary termination, Amazon has to give 30 days’ notice; (ii) in the case of extraordinary termination (based on alleged legal infringements by a seller), Amazon is obliged to inform the seller and provide reasons.
  • Amazon will drop its so-called ‘parity requirement’, according to which sellers had to provide products of the same high quality as the one that they use in other sales channels. In 2013, the Bundeskartellamt already prompted Amazon to drop parity clauses that had the same effect but concerned price rather than quality.
  • Amazon will put sellers on par with its own retail operation when it comes to reviews: previously, reviews of third-party products by external providers (‘review clubs’) were no longer posted or removed, while Amazon did make use of its own ‘Vine’ review club; now, Amazon will make its Vine reviewing program available to third parties.


Given Amazon’s concessions, the Bundeskartellamt did not have to come to a proper decision. However, the authority did give us some insight into its assessment of Amazon’s potential abuse of dominance.

When it comes to market definition, the Bundeskartellamt stated it was ‘inclined to assume a product market for online marketplace services’ (which is in line with the influential theory of Filistrucchi et al.). On market dominance, the authority noted that ‘a large part of German online sales of well over 40% is generated via the marketplace’ and that Amazon’s significance as a ‘gatekeeper’ for customer access is therefore high.

The Bundeskartellamt’s discussion of theories of harm was equally limited, but it did make a clear division between Amazon’s exclusionary and exploitative practices. The authority noted that allegations regarding the termination and blocking of seller accounts, parity requirements and reviews were reviewed as exclusionary abuses. The reason is that these practices put sellers at a disadvantage compared to Amazon’s own retail operations. The other practices were reviewed as exploitative abuses: rather than having their origins in Amazon’s ‘dual role’, they are explained by Amazon’s market power vis-à-vis sellers.

Beyond the broad range of practice that Amazon will change, the Bundeskartellamt’s decision stands out for two other reasons. Firstly, Amazon will adjust its practices not only in Germany but worldwide (including in North-America). While national proceedings have led to EU-wide commitments before (e.g. in the case of, the scope of these commitments is truly remarkable. Perhaps Amazon hopes it will appease the growing chorus of critical voices in the United States. Secondly, the duration of the proceedings was limited to only seven months. In fast-moving digital markets, where even brief periods of exclusionary practices can have lasting effects, the relative speed of these proceedings must be applauded.

The European Commission’s investigation

The Bundeskartellamt did not look at every contentious practice engaged in by Amazon. More specifically, the authority clarified it did not take up complaints by sellers ‘regarding the use of marketplace data, ranking and Buy Box’. In a press release published at precisely the same time as the Bundeskartellamt’s, the Commission announced it was looking at exactly those practices.

This investigation doesn’t come out of nowhere. In September 2019 already, Commissioner Vestager stated the Commission was looking at how Amazon uses the data it gathers on third-party transactions to boost the sales of its own products (see the CoRe Blog post on this topic). Now, that preliminary investigation has turned into a formal one, focused on two practices:

  • ‘The standard agreements between Amazon and marketplace sellers, which allow Amazon’s retail business to analyse and use third party seller data. In particular, the Commission will focus on whether and how the use of accumulated marketplace seller data by Amazon as a retailer affects competition.’
  • ‘The role of data in the selection of the winners of the “Buy Box” and the impact of Amazon’s potential use of competitively sensitive marketplace seller information on that selection. The “Buy Box” is displayed prominently on Amazon and allows customers to add items from a specific retailer directly into their shopping carts.’


The short press release does not offer many details on the investigation, but it is clear that the (anti)competitive effects of Amazon’s use of third party seller data are at the heart of it. The Commission will definitely be looking at how the use of such data affects the ranking of products on the online marketplace (and in particular the ‘Buy Box’, which is responsible for the vast majority of transactions). It is unclear whether the Commission is also looking at Amazon’s use of third party seller data for product development—an issue the media has focused on repeatedly over the past few years.

While the investigation is now officially underway, a lot of work remains to be done. Beyond defining Amazon’s market and its dominance on it, the Commission will have to come up with a credible theory of harm. It may draw inspiration from its Google Search decision, where it found that Google favoured its own comparison shopping services over those of third parties in its search rankings. However, the Commission may also want to rely on a more general theory of discrimination under Article 102(c), or even update margin squeeze for the platform economy.

Another challenge is to come up with an effective remedy. A structural separation between Amazon’s marketplace and retail activities, as proposed by some scholars and policymakers (especially in the U.S.), seems pretty far away. Another option consists in ‘firewalls’, a milder form of separation where business units still operate under the same umbrella. However, given the EC’s track record, a purely behavioural remedy (e.g. a limitation on the ways in which Amazon can use third party seller data) appears more likely.

Looking ahead/abroad

While the coordinated action of the Bundeskartellamt and Commission made headlines, at least three other competition authorities also have their eyes on Amazon’s conduct.

Firstly, the competition authority of Luxembourg, where Amazon has its seat, has opened an investigation. While the authority does not explicitly name Amazon in its announcement, its description of its target—‘an international firm with its European in Luxembourg that offers access to its websites as well as various platforms to third party sellers’—does not leave much up to the imagination.

Secondly, the Italian Competition Authority has opened a preliminary investigation into alleged self-preferencing: Amazon only grants certain advantages (e.g. in terms of visibility) to third party sellers that make use of its ‘Fulfillment by Amazon’ logistics program. Sellers that do not make use of Amazon’s logistics service are thus being discriminated against. Ambitiously, the Italian Competition Authority has already set an end data for its investigation: 15 April 2020 (one year after opening it).

Thirdly, the Austrian Competition Authority weighed in on the latest developments with another well-timed press release. In February 2019, the authority had started a preliminary investigation in discriminatory/self-favouring conduct by Amazon. Now, it states that—based on Amazon’s changes to its business terms and practices—it will not further pursue its investigation. However, it will continue to observe Amazon and reserves the right to investigate further.

Finally, the avalanche of antitrust investigations makes it easy to forget that—just a week ago—the EU Regulation on promoting fairness and transparency for business users of online intermediation services was published (see the CoRe Blog post on the topic). Indeed, some of the ‘concessions’ offered by Amazon are actually mandated by that Regulation.

In conclusion, it’s clear that the ‘dual role’ of big tech companies as both platforms and operators on their own platforms remains a priority for agencies and policymakers. For Amazon specifically, this means that these are not nearly the last changes to its business practices.



Friso Bostoen

Blog Editor

Assistant Professor of Competition Law and Digital Regulation, Tilburg University

Friso Bostoen is an assistant professor of competition law and digital regulation at Tilburg University. Previously, he was a Max Weber Fellow at the European University Institute. He holds degrees from KU Leuven (PhD, LLM) and Harvard University (LLM). Friso’s research focuses on antitrust enforcement in digital markets. His work has resulted in numerous international publications, presentations, and awards (including the AdC Competition Policy Award 2019 and the Concurrences PhD Award 2022). In addition, Friso edits the CoRe Blog and hosts the Monopoly Attack podcast.

>> Friso’s CoRe Blog posts >>

Hinterlasse eine Antwort

Zusammenhängende Posts

18. Mrz 2024
von Daniel Mandrescu
competition law, abuse of dominance, apple app store, the digital markets act

The Apple App Store – A New Kind of Hallmark Case

After almost three years since the Commission sent Apple its statement of objections, which was significantly trimmed down, the Commission reached a finding of abuse for which it imposed a whopping fine of 1.8 billion euros. Alongside this case, Apple was also involved in an almost identical case running parallel in the Netherlands, with similar findings. Meanwhile, during these procedures, […]
16. Nov 2023
Features von Daniel Mandrescu
platforms, dma, gatekeepers, digital markets act, apple, google, microsoft, smasung

Rebutting the gatekeeper status – what does it take?

The deadline for appeals on the gatekeeper designation under the DMA is nearing its end.  Since the DMA imposes gatekeepers with demanding obligations, it is only natural that the potential subjects of this regulation will attempt to contest this status. What remains, however, to be clarified is what prospective gatekeepers can put forward as evidence to avoid being designated as […]
07. Nov 2023
Features von Daniel Mandrescu
app store, apple, abuse of dominance, platforms, ACM, art. 102 TFEU.

The ACM vs. Apple AppStore – A Second Chance To Get It Right

The Dutch case concerning the Apple App Store appears to make a (welcome) comeback. The case that started in 2019 came to a rather disappointing end in the summer of 2022 when the Dutch competition authority issued a public statement that gave the impression that it was satisfied with Apple’s adjustments to the App Store front in the Netherlands. This […]
26. Okt 2023
von Daniel Mandrescu
airport travel

Booking / eTraveli: assessing envelopment strategies and mixing up market power thresholds

About a month ago the European Commission announced that it was prohibiting the acquisition of eTraveli by Booking Holdings ( The prohibition, which is a rare occurrence in itself, did not attract much attention beyond comments on the ‘ecosystem’ theory of harm which it may have introduced. But this case offers more than that. First, it shows that current practice […]
12. Sep 2023
Features von Daniel Mandrescu
Microsoft teams antitrust claim, abuse of dominance, European commission

Microsoft III – Paving The Way To A Tying Trilogy?

This summer the European commission (finally) announced it will start a formal investigation against Microsoft following Slack’s complaint concerning the (abusive) tying or bundling or Teams to the Microsoft and Office 365 suites. Not long after, Microsoft came out with an official statement concerning the changes in its pricing and distribution strategy  of Teams it will introduce in order to […]
31. Aug 2023
von Parsa Tonkaboni
The ECJ Judgment in CK Telecoms – Setting the Record Straight? - 0122 Blog post

The ECJ Judgment in CK Telecoms – Setting the Record Straight?

Introduction On 13 July 2023, the European Court of Justice (‘ECJ’) delivered its highly anticipated ruling in CK Telecoms UK Investments v European Commission (‘CK Telecoms’). The Grand Chamber judgment is significant at the most fundamental level. It clarifies some of the core legal concepts and principles at the very heart of EU merger control. The five crucial issues the […]
08. Mrz 2023
Features von Friso Bostoen
Requiem for an objection: the Commission drops half of its App Store case - zhiyue 7DOU5NlNIcE unsplash

Requiem for an objection: the Commission drops half of its App Store case

On 28 February 2023, the European Commission (EC) sent Apple a new Statement of Objections (SO) ‘clarifying its concerns over App Store rules for music streaming providers’. Rather than a clarification, or an expansion of the previous SO, the new SO dropped one of the two objections—an unusual move, especially at this stage of the proceedings. When a startup shuts […]
18. Jan 2023
Features von Daniel Mandrescu
competition law, abuse of dominance, refusal to supply, Lithuanian railways, bronner, essential facility, art. 102 TFEU

Case C-42/21P Lithuanian Railways – another clarification on the Bronner case law and the non-exhaustive character of art. 102 TFEU

The recent case of Lithuanian Railways provides yet another clarification on the scope of application of the Bronner case law. The Judgement of the CJEU reconfirms exceptional character of the Bronner case law and the type of situations it is intended to apply to. By doing so the CJEU potentially helps prevent future disputes of a similar  nature in the […]
03. Jan 2023
Features von Daniel Mandrescu
facebook, competition law, abuse of dominance, art. 102 TFEU, multisided platforms, dominant position, tying and bundling, unfair trading conditions, competition economics, european commission,

On-platform Tying or Another Case of Leveraging- A Discussion on Facebook Marketplace

Just before 2022 ended the Commission sent a statement of objections to Meta regarding the potential abusive behaviour of Facebook. According to the statement of objections, Facebook may be engaging in (i) abusive tying practices with regard to Facebook Marketplace as users (i.e. consumers) that log into Facebook and are automatically also offered access to the Facebook Marketplace, without the […]
07. Dez 2022
Features von Daniel Mandrescu
market definition notice, relevant market, market power, market analysis, notice update, digital platforms, multisided markets, multisided platforms, online platforms, SSNIP test, SSNDQ test, Google android, Google shopping, merger control, abuse of dominance

The draft notice on market definition and multisided (digital) platforms – avoiding rather than resolving some of the main challenges

Approximately a month ago the Commission published its draft notice on the definition of the relevant market. The new notice is supposed to replace the old one that dates back to 1997 and thereby bring the entire process up to date with today’s new challenges, particularly in the context of digital markets. A first read of this long awaited document […]

Abonnieren Sie unseren Newsletter, um aktuelle Informationen über rechtliche Entwicklungen, bevorstehende Konferenzen, Seminare und Publikationen zu erhalten.

Bleiben Sie auf dem Laufenden: Newsletter Abonnement