Amazon is defending itself at the Federal Court of Justice (BGH) against a decision by the Federal Cartel Office to take the online giant harder. On Tuesday (11.30 a.m.) the cartel senate in Karlsruhe will be hearing for the first time about a complaint against the classification as a company with “outstanding cross-market importance for competition”. This decision gives the agency more power to prohibit certain types of behavior. It is unclear when a verdict will be pronounced.
In 2021, the Cartel Office was given more powers over companies with cross-market influence and can prohibit them from practices that it believes endanger competition. This can also refer to markets where the companies are not (yet) dominant. “This is a significant difference to the previous abuse control and allows the Federal Cartel Office to intervene at an early stage in order to keep the markets open, promote innovations and protect the choices of consumers,” says the authority.
For example, self-preference, i.e. giving preference to one’s own offers over those of competitors, opening up new markets – when it comes to quickly expanding one’s own market position in new markets, for example through bundled offers – and exploiting data power can be prohibited.
Apple and Amazon are filing a lawsuit
While the Google mother Alphabet and the Facebook group Meta accepted a corresponding classification, Amazon and Apple filed a lawsuit. A special feature is that the BGH decides directly on these complaints from companies and not, as is usually the case, first in the Düsseldorf Higher Regional Court. This should enable the final court decision to be available earlier.
In the case of Amazon, the cartel office found in July 2022 that the group was a “key player in the field of e-commerce”. Its offers as a retailer, marketplace, streaming and cloud provider, among other things, are linked to form a digital ecosystem.
Amazon sees it differently. A spokesman said of the complaint: “The retail market in which Amazon operates is very large and very competitive, both online and offline.” Amazon is primarily a retailer and the overall share of e-commerce in German retail sales is for that In 2022, the German Retail Association estimated the figure at just 13.4 percent.
“We compete with many established, successful German and international companies – and that applies equally to our business in other sectors,” said the spokesman. Amazon has invested 48.5 billion euros in Germany over the past eleven years, works closely with local research and employs more than 36,000 people. Small and medium-sized companies that sell on Amazon employ more than 160,000 people in Germany.
Authority examines possible influence on prices
Even before the change in the law, the Bonn authority had begun to examine whether Amazon might be influencing retailer prices and possible disadvantages for marketplace retailers through various instruments, such as agreements between Amazon and manufacturers that prevent third-party retailers from selling (branded) products could rule out. Both procedures were expanded after the Cartel Office determined the cross-market significance.
For the first time, the BGH is now dealing with the modernization and strengthening of competition law abuse control; the Apple case is pending, and the Microsoft investigation was initiated at the end of March. Among other things, on Tuesday it will be about whether the amendment to the law conforms with EU law and the constitution. (dpa)