【案例】 欧盟对亚马逊利用独立卖家数据行为发出异议声明并发起反垄断调查
来源:欧盟委员会 原文标题:Antitrust: Commission sends Statement of Objections to Amazon forthe use of non-public independent seller data and opens second investigationinto its e-commerce business practices
导读 2020年11月10日,欧盟委员会宣布,其已向亚马逊传达了初步看法,认为亚马逊扭曲了在线零售市场的竞争,违反了欧盟反垄断规则。欧盟委员会称,亚马逊系统地依赖在其平台上销售的独立卖家的非公开商业数据,这有利于亚马逊自己的零售业务,而亚马逊的零售业务直接与那些第三方卖家竞争,对于这种做法,欧盟委员会表示异议。此外,欧盟委员会还针对亚马逊启动了第二项正式的反垄断调查,调查对象是针对亚马逊自身以及使用亚马逊物流和快递服务的平台卖家零售报价的可能的优待。欧盟委员会负责竞争政策的执行副主席玛格丽特·维斯塔格(Margrethe Vestager)表示:“我们必须确保像亚马逊这样具有市场力量的双重角色平台不扭曲竞争。当亚马逊作为第三方卖家的竞争对手时,第三方卖家的活动数据不应该被用来为亚马逊带来利益。亚马逊平台上的竞争条件也必须是公平的。它的规则不应人为地偏袒亚马逊自己的零售报价,或使使用亚马逊物流和送货服务的零售商的报价获得优势。随着电子商务的蓬勃发展,以及亚马逊成为领先的电子商务平台,一个公平和不受扭曲的在线渠道对所有的卖家来说都很重要。”
TheEuropean Commission has informed Amazon of its preliminary view that it hasbreached EU antitrust rules by distorting competition in online retail markets.The Commission takes issue with Amazon systematically relying on non-publicbusiness data of independent sellers who sell on its marketplace, to thebenefit of Amazon's own retail business, which directly competes with thosethird party sellers.
TheCommission also opened a second formal antitrust investigation into thepossible preferential treatment of Amazon's own retail offers and those ofmarketplace sellers that use Amazon's logistics and delivery services.
ExecutiveVice-President Margrethe Vestager, in charge of competition policy, said: “Wemust ensure that dual role platforms with market power, such as Amazon, do notdistort competition. Data on theactivity of third party sellers should not be used to the benefit of Amazonwhen it acts as a competitor to these sellers. The conditions of competition onthe Amazon platform must also be fair. Its rules should not artificially favour Amazon's own retail offers oradvantage the offers of retailers using Amazon's logistics and delivery services.With e-commerce booming, and Amazon being the leading e-commerce platform, afair and undistorted access to consumers online is important for all sellers.”
Statementof Objections on Amazon's use of marketplace seller data Amazonhas a dual role as a platform: (i) it provides a marketplace where independentsellers can sell products directly to consumers; and (ii) it sells products asa retailer on the same marketplace, in competition with those sellers.
As amarketplace service provider, Amazon has access to non-public business data ofthird party sellers such as the number of ordered and shipped units ofproducts, the sellers' revenues on the marketplace, the number of visits tosellers' offers, data relating to shipping, to sellers' past performance, andother consumer claims on products, including the activated guarantees.
TheCommission's preliminary findings show that very large quantities of non-publicseller data are available to employees of Amazon's retail business and flowdirectly into the automated systems of that business, which aggregate thesedata and use them to calibrate Amazon's retail offers and strategic businessdecisions to the detriment of the other marketplace sellers. For example, itallows Amazon to focus its offers in the best-selling products across productcategories and to adjust its offers in view of non-public data of competingsellers.
TheCommission's preliminary view, outlined in its Statement of Objections, is thatthe use of non-public marketplace seller data allows Amazon to avoid the normalrisks of retail competition and to leverage its dominance in the market for theprovision of marketplace services in France and Germany- the biggest marketsfor Amazon in the EU. If confirmed, this would infringe Article 102 of theTreaty on the Functioning of the European Union (TFEU) that prohibits the abuseof a dominant market position.
Thesending of a Statement of Objections does not prejudge the outcome of aninvestigation. Investigationinto Amazon practices regarding its “Buy Box” and Prime label Inaddition, the Commission opened a second antitrust investigation into Amazon'sbusiness practices that might artificially favour its own retail offers andoffers of marketplace sellers that use Amazon's logistics and delivery services(the so-called “fulfilment by Amazon or FBA sellers”).
Inparticular, the Commission will investigate whether the criteria that Amazonsets to select the winner of the “Buy Box” and to enable sellers to offerproducts to Prime users, under Amazon's Prime loyalty programme, lead topreferential treatment of Amazon's retail business or of the sellers that useAmazon's logistics and delivery services.
The “BuyBox” is displayed prominently on Amazon's websites and allows customers to additems from a specific retailer directly into their shopping carts. Winning the“Buy Box” (i.e. being chosen as the offer that features in this box) is crucialto marketplace sellers as the Buy Box prominently shows the offer of one singleseller for a chosen product on Amazon's marketplaces, and generates the vastmajority of all sales. The other aspect of the investigation focusses on thepossibility for marketplace sellers to effectively reach Prime users. Reachingthese consumers is important to sellers because the number of Prime users iscontinuously growing and because they tend to generate more sales on Amazon'smarketplaces than non-Prime users. Ifproven, the practice under investigation may breach Article 102 of the Treatyon the Functioning of the European Union (TFEU) that prohibits the abuse of adominant market position. TheCommission will now carry out its in-depth investigation as a matter ofpriority. The opening of a formal investigation does not prejudge its outcome.
Backgroundand procedure Article102 of the TFEU prohibits the abuse of a dominant position. The implementationof these provisions is defined in the Antitrust Regulation (Council RegulationNo 1/2003), which can also be applied by the national competition authorities.
TheCommission opened the in-depth investigation into Amazon's use of marketplaceseller data on 17 July 2019.
AStatement of Objections is a formal step in Commission investigations intosuspected violations of EU antitrust rules. The Commission informs the partiesconcerned in writing of the objections raised against them. The addressees canexamine the documents in the Commission's investigation file, reply in writingand request an oral hearing to present their comments on the case beforerepresentatives of the Commission and national competition authorities. Sendinga Statement of Objections and opening of a formal antitrust investigation doesnot prejudge the outcome of the investigations.
Moreinformation on the investigation is available on the Commission's competitionwebsite, in the public case register under case number AT.40462.
TheCommission has informed Amazon and the competition authorities of the MemberStates that it has opened a second in-depth investigation into Amazon'sbusiness practices.
Thisinvestigation will cover the European Economic Area, with the exception ofItaly. The Italian Competition Authority started to investigate partiallysimilar concerns last year, with a particular focus on the Italian market. TheCommission will continue the close cooperation with the Italian CompetitionAuthority throughout the investigation.
Moreinformation on the investigation will be available on the Commission'scompetition website, in the public case register under case number AT.40703.
There isno legal deadlines for bringing an antitrust investigation to an end. Theduration of an antitrust investigation depends on a number of factors,including the complexity of the case, the extent to which the undertakingsconcerned cooperate with the Commission and the exercise of the rights ofdefence.
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