HomeInsightsEuropean Union Commission seeks feedback on commitments offered by Amazon on marketplace seller data and access to “Buy Box” and “Prime”

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The Commission is inviting comments on commitments offered by Amazon to address competition concerns over its use of non-public marketplace seller data and over a possible bias in granting sellers access to its Buy Box and Prime programmes.

The Commission explains that Amazon is a data-driven company whose retail decisions are driven by automated systems, fuelled by the relevant data. Amazon has a dual role as a platform. It runs a marketplace where independent sellers can sell products directly to consumers, and at the same time it sells products on its platform as a retailer, in competition with independent sellers. As a result of this dual position, Amazon has access to large sets of data about independent sellers’ activities on its platform, including non-public business data.

On 17 July 2019, the Commission opened a formal investigation to assess whether Amazon’s use of non-public data from independent retailers selling in its marketplace breached EU competition rules. On 10 November 2020, the Commission issued a Statement of Objections outlining its preliminary view that Amazon should not rely on independent sellers’ business data to calibrate its retail decisions, as this distorts and prevents fair, effective competition on its platform.

In parallel, the Commission opened a second investigation into:

i) Amazon’s Buy Box, which prominently displays the offer of a single seller and allows products to be swiftly purchased by directly clicking on a buy button, and;

ii) Amazon’s Prime programme, which offers premium services to customers for a monthly or yearly fee and allows independent sellers to sell to Prime customers under certain conditions.

The Commission found that the rules and criteria for the Buy Box and Prime unduly favour Amazon’s retail business, as well as marketplace sellers that use Amazon’s logistics and delivery services. This bias may harm other marketplace sellers, their independent carriers and other marketplaces, as well as consumers that may not get to view the best deals.

To address the competition concerns resulting from both investigations, Amazon has offered the following commitments:

i) marketplace seller data: Amazon commits to refrain from using non-public data relating to, or derived from, the activities of independent sellers on its marketplace for its retail business that competes with those sellers; this would apply to both Amazon’s automated tools and employees that could cross-use the data from Amazon Marketplace for the purposes of retail decisions; the relevant data would cover both individual and aggregate data, such as sales terms, revenues, shipments, inventory related information, consumer visit data or seller performance on the platform; Amazon commits not to use such data for the purposes of selling branded goods and/or its private label products;

ii) Buy Box: Amazon commits to applying equal treatment to all sellers when ranking their offers for the purposes of the selection of the winner of the Buy Box and to display a second competing offer to the Buy Box winner if there is a second offer that is sufficiently differentiated from the first one on price and/or delivery; both offers will display the same descriptive information and provide for the same purchasing experience to enhance consumer choice; and

iii) Prime: Amazon commits to setting non-discriminatory conditions and criteria for the qualification of marketplace sellers and offers to Prime, and to allow Prime sellers to freely choose any carrier for their logistics and delivery services and negotiate terms directly with the carrier of their choice; it also commits not to use any information obtained through Prime about the terms and performance of third-party carriers for its own logistics services to ensure that carriers’ data is not flowing directly to Amazon’s competing logistics services.

The commitments cover all Amazon’s current and future marketplaces in the European Economic Area. They exclude Italy in relation to Buy Box and Prime in view of the decision of 30 November 2021 of the Italian competition authority, which has already imposed requirements regarding the Italian market.

The commitments would remain in force for five years. Their implementation would be monitored by a monitoring trustee who would report regularly to the Commission.

The Commission invites all interested parties to submit their views on the proposed commitments before 9 September 2022. To read the Commission’s announcement in full and for links to further information, click here.