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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