On 11 June 2015, the EC announced a formal antitrust investigation into price and non-price most-favoured-nation (“MFN”) provisions in Amazon’s contracts with publishers concerning the distribution of e-books. This is the latest in a stream of high-profile MFN and similar cases in the EU involving online sales and distribution.
The various parties to the Apple e-books case, which partly concerned MFN provisions, settled it with the EC in 2012 and 2013. Amazon has previously been investigated in the UK and Germany for a similar price parity provision in its Marketplace arrangements and there are also various hotel booking website MFN cases currently active in the EU.
These cases all have different fact patterns but all concern Internet distribution. In addition to these specific cases, on 6 May 2015 the EC launched a general antitrust inquiry into the e-commerce sector in the EU. This is focusing particularly on potential barriers erected by companies to cross-border online trade in goods and services where e-commerce is most widespread such as electronics, clothing and shoes, as well as digital content. Knowledge gained through the sector inquiry will contribute to better enforcement of competition law in the e-commerce sector, such as the Amazon, Apple and hotel booking cases.
It is clear that the EC, along with national competition law regulators in the EU, has and will continue to have a strong focus on Internet distribution and any company whose business model may be affected should be aware of developments.