Introduction
On 20 April 2023, the Court of Justice rendered a judgement in the Amazon Buy Box case concerning parallel investigations by the Commission and the Italian competition authority.[1] The Italian authority had launched an investigation into Amazon’s “Buy Box” tool in April 2019, after which the Commission opened formal investigations into the same practice in November 2020.[2] When defining the geographical scope of its investigation, the Commission explicitly carved out Italy.[3] In this blogpost, we will take a look at the division of competences between the Commission and the national competition authorities, examine the judgements in the Amazon Buy Box case and see what this case means for parallel investigations under article 102 TFEU.
Procedural boundaries between the Commission and NCAs
Regulation 1/2003 established a system of parallel competences where both the Commission and the member states are competent to apply articles 101 and 102 TFEU. However, this principle is limited by article 11(6) of this regulation, which states that ‘the initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the member states of their competence to apply articles 101 and 102 of the Treaty.’ This is repeated in paragraph 51 of the Commission’s Cooperation Notice, where it can be read that the initiation of proceedings by the Commission ‘shall relieve all NCAs of their competence’. Furthermore, paragraph 5 of this notice states that ‘under this system of parallel competences, cases will be dealt by: a single NCA, several NCAs acting in parallel, or the Commission’. The notice thus does not seem to allow an investigation which is conducted both by the Commission and by an NCA at the same time, and this situation is normally avoided by applying article 11(6) of Regulation 1/2003.
Judgment in Amazon Buy Box
When initiating proceedings against Amazon, the Commission defined the geographical scope of its investigation as covering the whole EEA, with the exception of Italy. This carve-out was justified by the Commission by reference to the ongoing investigation of the Italian competition authority which, despite covering nearly identical practices, addressed ‘partially similar concerns’ with ‘a particular focus on the Italian market’.[4] The Commission added that there would be close cooperation between the two authorities during the investigation.
Amazon appealed this opening of proceedings by the Commission in 2021 insofar as it excluded Italy from its scope. Amazon argued that this decision deprived it of the protection against parallel proceedings granted by article 11(6) of Regulation 1/2003. The General Court dismissed Amazon’s action on the basis that the opening of proceedings did not alter Amazon’s legal position as it was merely a preparatory act, rendering the action inadmissible.[5] Furthermore, it held that article 11(6) did not grant Amazon a right to have its case handled exclusively by the Commission.
On appeal, the Court of Justice confirmed the General Court’s judgment, emphasizing in paragraph 31 that ‘the protection afforded by Article 11(6) of Regulation No 1/2003 applies only in the event of parallel proceedings brought by the competition authorities of the member states and the Commission against the same undertakings in respect of the same allegedly anticompetitive conduct occurring in the same product or geographical markets and over the same period or periods.’ This was not the case here precisely because of the Commission’s carve-out of Italy from its geographical scope.
Comments on the case
When looking at the Commission’s Cooperation Notice, there does not seem to be a possibility for the Commission to simultaneously handle a case in parallel with an NCA. Moreover, it is stated that the initiation of proceedings by the Commission relieves ‘all’ NCAs of their competence. When dealing with the same behaviour, it is preferable to have a single investigation covering the whole relevant geographical scope, concluded by a single decision. This can avoid conflicting decisions and prevents an unnecessary use of resources.
Moreover, an NCA is not allowed to take decisions that run counter to a Commission decision according to article 16(2) of Regulation 1/2003. This means that when the Commission concludes that an infringement has been committed, the NCA would be obliged to adopt the same decision. This in turn can trigger a ne bis in idem issue. According to cases Bpost and Nordzucker, there are three cumulative conditions for such an issue to arise: unity of the identity of the facts, of the offender and of the legal interest protected.[6] Limiting parallel investigations to cases where the carved-out market presents specific characteristics that make the relevant NCA better placed to handle the case, would avoid problems like this and ensures that there can only be two decisions when justified.
Lastly, it is true that the opening of proceedings is not a challengeable act since it is of preparatory nature and does not affect the parties’ legal positions. In principle, parties should wait until the final decision in order to appeal. However, can the same be said about the specific carve-out made by the Commission in the opening decision? Although the General Court and the Court of Justice did not think this made any difference, it can be debated whether a party’s legal position is affected by the fact that they are forced to face two proceedings.
[1] Judgement of 20 April 2023, Amazon and others v Commission, Case C‑815/21 P, ECLI:EU:C:2023:308.
[2]https://en.agcm.it/en/media/press-releases/2019/4/A528; https://ec.europa.eu/competition/antitrust/cases/dec_docs/40703/40703_67_4.pdf.
[3] https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_20_2077/IP_20_2077_EN.pdf.
[4] https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077; https://www.concurrences.com/en/bulletin/news-issues/april-2023/the-eu-court-of-justice-confirms-that-the-eu-commission-can-exclude-a-member.
[5] Judgement of 14 October 2021, Amazon and others v Commission, Case T-19/21, ECLI:EU:T:2021:730.
[6] Judgement of 22 March 2022, Bpost v Commission, Case C‑117/20, ECLI:EU:C:2022:202; Judgement of 22 March 2022, Nordzucker, Case C-151/20, ECLI:EU:C:2022:203.
Co(E)mpetition Procedure 