In 2022, the Federal Cartel Office certified Amazon's “outstanding cross-market importance” and placed it under stricter observation. The company filed a complaint – and has now failed before the Federal Court of Justice.
The Federal Court of Justice (BGH) has sided with the competition watchdog in the Federal Cartel Office's legal dispute with Amazon. The Federal Court of Justice's Cartel Senate confirmed the assessment “that Amazon has an outstanding cross-market importance for competition”. The corresponding classification by the Cartel Office was therefore legal. This clears the way for the Bonn authorities to punish the company more severely in the future and possibly also ban certain business practices.
In July 2022, the Federal Cartel Office certified that Amazon had outstanding market power on the basis of a new regulation and thus placed it under stricter observation. This classification was the first step in a two-stage process. In a second step, the company could be banned from certain practices. For example, the online giant could be prohibited from giving preference to its own offers when displaying them.
Ongoing proceedings against other companies
Amazon lodged a complaint against the classification, but was unable to prevail before the BGH. Andreas Mundt, President of the Federal Cartel Office, welcomed the BGH decision: “It gives us momentum for our ongoing proceedings against Amazon, with which we want to ensure that traders on the Amazon marketplace are treated fairly.” The ruling also strengthens the position in ongoing proceedings against other Internet companies such as Alphabet (Google), Apple, Meta (Facebook) and Microsoft, as well as possible new proceedings.
Amazon criticized the BGH decision. “The retail market, both online and offline, is very large and extremely competitive,” said a spokeswoman. “We disagree with the court’s decision and will consider further appeals.”
“Excellent access to relevant to competition Data”
The Cartel Senate of the BGH dealt with the matter for the first time in June and at that time did not find any violations of European or German law in the Federal Cartel Office's actions. The judges now confirmed that the antitrust watchdogs had correctly determined that Amazon had significant “strategic and competitive potential” that enabled it to “exercise significant influence on the business activities of third parties.”
According to this, Amazon has “a dominant position on the German market for online marketplace services for commercial traders”. The group has “outstanding financial strength and outstanding access to data relevant to competition, such as customer and user data, data from the operation of trading platforms and advertising platforms.” Likewise, as the operator of numerous online marketplaces, Amazon has a key position for retailers' access to their sales markets, the court noted. The Federal Cartel Office rightly determined that Amazon was of “outstanding cross-market importance for competition”.
In June, the Cartel Senate did not want to rule out the possibility that it might become necessary to submit questions to the European Court of Justice in Luxembourg. However, the judges now also ruled out this and referred in particular to the EU Digital Markets Act (DMA), which has now come into force: The EU Commission has also classified Amazon as a central internet company, a so-called gatekeeper, under the DMA.
There are two other proceedings pending before the BGH that are similar. While Google parent Alphabet and Facebook group Meta accepted a corresponding classification, Amazon and Apple filed suit. A special feature is that the BGH decides directly on these complaints from companies and not, as is usually the case, the Düsseldorf Higher Regional Court in the first instance. This is intended to enable final court decisions to be made earlier.
