28 February 2019
This month’s CLIP comes from the Bundeskartellamt’s thought-provoking series of papers on ‘Competition and Consumer Protection in the Digital Economy’. In this paper the German competition authority considers the extent to which manufacturers and brand owners can impose vertical restraints on retailers in e-commerce markets. Referring to the German Federal Court’s judgment in Asics and the European Court of Justice’s ruling in Coty, the BKartA suggests that restrictions on the use of online marketplaces always require case-by-case assessment. In its view, the assessment may vary depending on the nature of the products and consumer preferences in the relevant geographic market. “Especially with regard to products marketed on a large scale”, the BKartA “doubts whether restrictions on platforms and other internet distribution channels increase inter-brand competition to an extent that outweighs the considerable restrictions of intra-brand competition”. Such comments suggest that the German competition authority will continue to take a strict approach to enforcement in this area. At the end of the paper, the BKartA also comments on the “dual role” of online platforms such as Amazon. As we discussed here, this is an issue which has recently been taken up by the European Commission. The Commission is considering whether competition concerns may arise if Amazon collects sensitive data about products sold via its Marketplace and then exploits that data to enhance its own online retail offerings. As Commissioner Vestager put it in September 2018:
“The question here is about the data […] Because if you, as Amazon, get the data from the smaller merchants that you host – which can be, of course, completely legitimate because you can improve your service to these smaller merchants – do you then also use this data to do your own calculations: as what is the new big thing, what is it that people want, what kind of offers do people like to receive, what makes them buy things?”
Whilst the Commission’s investigation is still at the preliminary, information-gathering stage, it will be an important one to watch. If the Commission does end up concluding that Amazon’s conduct is contrary to the competition rules, that could signal an important development at the intersection of data and antitrust enforcement.