15 July 2015
Yesterday evening, together with a few colleagues, I attended a seminar on the European Commission's e-commerce sector inquiry, which was launched in May this year. The presentation was given by Thomas Kramler, who heads the Commission task force running the inquiry.
Thomas provided some interesting insights into the scale and scope of the inquiry. In the UK alone, some 300 companies have received lengthy questionnaires. The recipients are digital content service providers (e.g. video-on-demand providers), online platforms (marketplaces such as eBay and price-comparison sites) and e-tailers (both online-only ‘pure-players’ and ‘hybrid’ (online and bricks-and-mortar) retailers).
The inquiry will focus on private (contractual) barriers to cross-border trade, in particular in areas where e-commerce is already widely used such as clothing and consumer electronics. It is hoped that the information gathered will complement other portions of the Commission's 'Digital Single Market' initiative, which will examine public barriers to trade arising from copyright rules, consumer protection laws and the like.
The inquiry will in particular examine contractual clauses which create barriers to passive sales, hinder online sales generally (e.g. bans on sales via online platforms such as eBay or Amazon marketplace) and restrict price competition to the detriment of consumers (e.g. classic resale price maintenance (RPM) clauses and most favoured nation obligations (MFNs)).
Thomas admitted freely that the Commission had not actively investigated vertical restraints in the last decade. However, he indicated that the inquiry was likely to lead to enforcement which may clarify the Commission's approach to developments in distribution agreements which have arisen in response to the huge popularity of online commerce.
On timing, Thomas explained that the Commission is hoping to issue a preliminary report in mid-2016. Following a public consultation, the Commission’s final report is due to be published in early 2017.
For those interested in more detail about the e-commerce inquiry, I’d recommend reading Sophie and Elisabetta’s recent article on the topic published in Competition Law Insight, which you can access here. You might also want to take a look at Elisabetta’s Cookie Jar post here and Thomas' slides here. The European Parliament has also very recently chipped in with its thoughts on competition policy in digital markets with this 80-page report. There is clearly a lot going on in this space and so we will be sure to follow up with further comment. Watch this space.