Rejection of competition law complaint against Amazon

By its Decision 2017-C-02 of 21 June 2017, the Competition Council (“Council”) rejected a complaint filed against Amazon Services Europe S.à r.l. (“Amazon”) in June 2016 for an alleged abuse of a dominant position in online distribution services.

The complainant, who sold products through Amazon’s internet platform pursuant to an agreement entered into in 2007, alleged that Amazon’s unilateral decision to put an end to the contractual relationship without prior notice constituted an abuse of the latter’s dominant position on the market for services rendered by online distribution platforms.

The Council established the relevant market, from a product point of view, to be the upstream market for platform services to third party vendors wishing to sell their products through internet sites such as Amazon’s, the downstream retail market for sales of products through such a platform not being directly affected by the contested practice. The definition of the relevant market from a geographical perspective and the question whether Amazon held a dominant position on the relevant market were left open since the Council did not find it necessary to come to a definitive finding on these issues.

As to the alleged abuse, the Council considered, in essence, that the unilateral termination of a contractual relationship without objective justification, as such, is not sufficient to establish an abuse of a dominant position consisting in the exclusion of a competitor from the market. In addition, in the case at hand, no evidence was found of any exclusionary intention on Amazon’s side. Also, an objective justification was given for the termination of the agreement, namely the repeated infringement of Amazon’s terms and conditions by the complainant. Finally, the Competition Council rejected the argument that Amazon’s platform was to be considered as an essential facility since it was not established that it was indispensable for the complainant’s business activity given the existence of numerous competing platforms.

Although the circumstances of the case did not warrant an elaborate analysis, the decision offers proof of the increased interest in competitive conditions created by the complex vertical relationships governing online markets and services.