This month, the Spanish Competition Authority ("CNMC") has opened formal proceedings against Amazon and Apple for their alleged participation in a conduct prohibited by Articles 1 of the Spanish Competition Act and 101 of the TFEU related to the sale of Apple products in Amazon's marketplace.

According to the CNMC, this conduct could be restricting competition in the markets of online sale of electronic products, and in the market of the provision of marketing services to third party retailers through online platforms (marketplaces) in Spain.  

The CNMC's investigation

The proceedings has been brought against the four subsidiaries through which Amazon operates in Spain -Amazon Services Europe S.À R.L., Amazon Europe Core S.À R.L., Amazon EU S.À R.L., and Amazon Online Spain, S.L.-, as well as the three companies through which Apple provides its services in the national territory -Apple Distribution International Ltd., Apple Retail Spain, S.L., and Apple Marketing Iberia, S.A.-.

The anti-competitive conduct under investigation would consist of an agreement between these tech giants including commercial restrictions on Amazon's website for Spain which affect, inter alia, the retail sale of Apple products by third parties, the advertising of competing Apple products and certain advertising campaigns directed at Apple customers by Amazon. 

In particular, the CNMC has revealed that such agreement would have the effect of limiting the retail sale of Apple products by third parties in Amazon's marketplace in Spain. The CNMC seems to believe that these companies would have collaborated to promote the direct sale of Apple official products but would have limited the scope of those same products sold by third party retailers.

The CNMC joins the growing trend of investigating the 'big tech' 

Apart from this probe opened in Spain, since October 2020, the German Competition Authority (the "Bundeskartellamt") is examining to what extent agreements between Amazon and brand manufacturers (including Apple), which exclude third-party sellers from selling brand products in Amazon's marketplace, complies with competition rules.

In addition, Amazon and Apple's activities, together with other big tech companies, have increasingly come under the scrutiny from other national competition authorities and the European Commission (e.g. the ongoing investigations concerning the use of Amazon's "Buy Box" tool and the Prime loyalty programme -discussed in our in Focus article of Competitive Edge March 2021- and Apple's alleged abuse of its dominant position for the distribution of music streaming apps through its App Store).

However, while competition authorities in Europe predominantly concern about these companies abusing their market power, the CNMC seems to join the opinion of the Bundeskartellamt and has now decided to investigate whether a potential restrictive collaboration between Amazon and Apple is infringing competition rules.  

For further information, please refer to the official press release published by the CNMC here.

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