Status: 01/12/2022 4:53 p.m.
Marketplace dealers in particular feel the strength of Amazon. The online giant apparently wants to maintain its market power at all costs – and is now even submitting a constitutional complaint in Karlsruhe.
Without warning, Michael Tomerius’s Amazon retailer account was blocked last summer and sales were frozen. His products on the Amazon Marketplace could no longer be found by his customers. “A catastrophe! That means nothing happens anymore. You no longer have any income, the costs keep running and there is no way you can do anything about it,” said the entrepreneur. Months later, Tomerius is still pissed off about the lockdown.
It was only through his lawyer that he found out the reasons for the sudden ban. The reason given by Amazon: He initiated unfair sales processes in order to deceive third parties. “But that’s about it,” explains his lawyer Simon Spangler. However, his client could not imagine anything concrete about it, and was not aware of any errors, so Spangler continued.
Account closings have long been an issue
Amazon has been criticized by retailers and competition watchdogs for years because of its lack of transparency. In 2018, the Cartel Office opened proceedings against Amazon, among other things, for account closings without further justification. The group promised improvement. The proceedings were discontinued. Apparently not much has changed in practice.
Compared to the ARD consumer magazine Plusminus the industry association “Händlerbund” says that they process an average of 22 account locks per month, which would freeze sales of up to 100,000 euros from Amazon. For small and medium-sized online retailers, every day without trading volume can quickly become a problem. Finding a solution with the tech giant is time-consuming and often cannot be done without legal support.
Retailers feel at the mercy of Amazon
The Federal Association of Online Trade carried out a survey of Amazon retailers in 2021. The result: 78 percent of those questioned complain about the difficult cooperation with the US group. The dealers are often dependent on Amazon and their existence is affected if an account is blocked, if suddenly they can no longer make sales overnight, says Jörg Hubacher, vice president of the association. He is critical of Amazon’s behavior.
For many retailers, Amazon is the most important sales channel on the Internet, says antitrust law expert Thomas Höppner. There is no way around Amazon for retailers in the online business. No other platform has such a wide reach as Amazon, says Höppner. He has no doubt that Amazon is the market leader in the area of online sales platforms for retailers.
Dominant position was never established
And that is the crux of the matter: To date, neither the EU Commission nor the Federal Cartel Office has determined that Amazon has dominated the market. But that would have significant disadvantages for Amazon. The US group could then be more easily sanctioned by the authorities in the event of abuse of its market power.
And although in antitrust law it is assumed that there is dominance of the market if the market share exceeds forty percent in a relevant market, the Federal Cartel Office has not yet established any dominance of the market. In the first Corona year 2020, Amazon was able to increase its market share in German online retail to 53 percent. Antitrust law expert Höppner has long had no doubts about the dominant market position.
Amazon wants to prevent detection by all means
It was precisely this market power of Amazon, assumed by the Hanover Regional Court, that was the basis for the court to issue an injunction to unblock the account of marketplace retailer Tomerius. The special thing about it: no court had previously determined this so clearly.
Amazon has filed a constitutional complaint against this decision. The reason: The Hanover Regional Court did not hear from Amazon and therefore violated the right to a fair trial, as can be read in the constitutional complaint. Because the Hanover regional court had refrained from hearing Amazon before the preliminary injunction. The group is now defending itself against this. Direct access to the Federal Constitutional Court is only possible in this special case of “denial of hearing”.
Does Amazon want to set a precedent?
Nevertheless, this is an exceptional case, says antitrust law expert Höppner, and it shows what kind of guns Amazon is appearing with here. After all, you are dealing with small dealers who have ultimately tried to clarify matters out of court, and in response Amazon is opening large guns and immediately making a constitutional complaint in Karlsruhe.
Höppner’s suspicion: “It could well be that one of the goals that Amazon is pursuing with this complaint is to put an end to this precedent, where the dominant position was once established, in order to be able to say we are again not at all dominant. “
The power of Amazon is already huge. And a decision by the Federal Constitutional Court could further strengthen Amazon’s position.
The ARD program Plusminus will report on this topic this evening at 9.45 p.m.