THE BOTTOM LINE
- Your Data Is Your Data: The practice of using aggregated seller data to inform your own retail strategy is under fire. An Advocate General opinion suggests that simply promising not to use individual seller data isn’t enough to satisfy EU competition law.
- Self-Preferencing Is a Major Risk: Giving preferential treatment to your own ancillary services (like logistics or payment processing) within your marketplace is a significant antitrust red flag. Commitments to “equal treatment” will be scrutinised for loopholes that favour the platform owner.
- Antitrust Settlements May Get Tougher: This opinion, if followed by the Court, signals that the European Commission’s settlements will be held to a higher standard. Companies can expect tougher negotiations and less room for compromises that don’t fully address the core competition concerns.
THE DETAILS
In a significant opinion that could reshape the regulatory landscape for digital platforms, an Advocate General (AG) of the EU’s top court has recommended the annulment of the European Commission’s decision accepting Amazon’s antitrust commitments. The case centres on Amazon’s dual role as both a marketplace for independent sellers and a retailer of its own products. The AG’s non-binding, but highly influential, advice argues that the commitments made by Amazon, and accepted by the Commission, were insufficient to resolve the underlying competition issues.
The first major flaw identified by the AG relates to Amazon’s use of seller data. Amazon had committed not to use non-public data from its marketplace sellers to benefit its own retail business. However, the AG found a critical loophole: the commitment still allowed Amazon to use aggregated data. This means Amazon could still analyse overall market trends, identify best-selling products, and observe pricing strategies to gain what the AG termed a significant competitive advantage when launching its own private-label products. The Commission, in the AG’s view, failed to adequately justify why this loophole was acceptable.
The second point of failure concerned Amazon’s lucrative Buy Box. Amazon promised to apply equal treatment to all sellers when determining which offer gets featured. Yet, the commitment was structured to allow Amazon to continue giving preferential treatment to sellers using its own logistics service, “Fulfilment by Amazon” (FBA). The AG argued this practice of self-preferencing, where Amazon leverages its marketplace dominance to boost its separate logistics business, was not properly resolved. The opinion concludes that the commitments fundamentally failed to remedy the very competition concerns the Commission had initially identified, making the decision to accept them legally unsound.
SOURCE
Source: Court of Justice of the European Union
