Background of the case
In November 2020, the Commission adopted a decision initiating an abuse of dominance investigation into Amazon’s Buy Box feature. The Commission suspected that Amazon was artificially favouring its own retail offers and offers of sellers that use Amazon’s delivery services. The Commission decided that the investigation covered the whole of the EEA with the exception of Italy. This was because the Italian competition authority was already investigating similar conduct in the Italian market.
Amazon asked the GC to annul the part of the Commission decision that excluded Italy from the scope of the investigation. The GC dismissed Amazon’s action because the Commission decision did not affect Amazon’s legal position and therefore did not constitute a challengeable act.
The ECJ upheld the GC’s order and confirmed that a decision by the Commission to open an investigation is a preparatory act without any binding legal effect and therefore not a challengeable act. Based on settled case law, only measures that are intended to have binding legal effects are regarded as actionable measures. Intermediate measures whose purpose is to prepare for the definitive decision are not open to challenge.
The ECJ did not subscribe to Amazon’s argument that the Commission’s decision to exclude Italy from the scope of its investigation did produce a binding legal effect because it deprived Amazon of its right to protection against parallel proceedings.
National competition authorities are no longer competent to investigate a company’s potentially abusive conduct if the Commission initiates an abuse of dominance investigation into that same conduct. However, the ECJ made clear that this protection against parallel proceedings applies only in the event of parallel proceedings brought by the Commission and national competition authorities against (i) the same undertaking (ii) for the same allegedly anticompetitive conduct, (iii) occurring in the same product and geographical market, and (iv) over the same period. If the Commission has not initiated proceedings in respect of a given territory, companies cannot avail themselves of this protection.
The protection against parallel proceedings does not imply any right for a company to have a case dealt with in its entirety by the Commission. The GC was thus correct in finding that the Commission’s decision to exclude Italy from its investigation did not affect Amazon’s legal position. Therefore, the Commission decision initiating an abuse of dominance investigation is not a challengeable act.
If Amazon wants to challenge aspects of the Commission decision initiating an abuse of dominance investigation, Amazon can do so in an action against the final decision at the end of the investigation.
This article was published in the Competition Newsletter of May 2023. Other articles in this newsletter: