The Amazon case in light of cooperation between the EU Commission and the Italian Competition Authority

While waiting for the Digital Market Act (Regulation EU 2022/1925) to become operational in practice – the first step being gatekeepers' designation [1] – behavioural corrections in digital markets can be introduced through antitrust procedures. Commitments allow more granular remedies that are better adapted to the specific business model, whereas the obligations and prohibitions posed by the DMA for the gatekeepers seem to need "translation" into more specific enforcement rules, given the vast differences across the business models [2]. Moreover, the gatekeeper designation is a challenging step, and the Commission is therefore proceeding with great caution and is engaging proactively with industry stakeholders to ensure effective compliance with the new rules [3].

Conditions are thus created for transitional arrangements, accepted by tech firms in anticipation of the new regulatory framework. Hence the interest in the investigations on the business practices of Amazon, which were opened by both the Italian Competition Authority (ICA) and the EU Commission.

Amazon is a digital ecosystem of more than 40 subsidiaries and countless third parties offering various goods and services [4]. As is well known, it is active in multiple product markets: i) e-commerce, in which it operates through its marketplace both in direct sales to consumers (Amazon Retail) and in offering intermediation service to third-party sellers; ii) logistics and distribution service, Fulfillment by Amazon (FBA), which has been defined as the “railroad of e-commerce” [5]; iii) other products and services such as streaming music, video on demand, electronic devices (Alexa, FireTV, Fire Tablet, Kindle); iv) cloud computing services, through the Amazon Web Services platform, mainly to the business demand segment.

Some of these goods and services are offered in a bundle, called Amazon Prime. A Prime subscription gives you access to fast and free delivery of goods and to other services (video and music streaming services, online video games, access to e-books, and cloud storage). Platforms like Spotify and Netflix are quite different. They are merely acting in the market for streaming services for music and video respectively, whereas Amazon offers both these services to its Prime subscribers in combination with several other services for a single price. This is a good explanation of how different goods and services in a digital ecosystem are supplied in a complementary and interconnected way.

Amazon does not hold a dominant position in every market in which it operates. However, if it has a dominant position in relevant market x, it can leverage that position in another relevant market y, in which it does not have a dominant position [6]. The Italian Competition Authority (ICA) insists on this point: in the management of its marketplace, Amazon is said to have favoured its logistics and distribution service by excluding sellers who do not use it from access to Prime and the Buy Box [7]. This exclusion would be detrimental to third-party sellers operating in the marketplace [8]. Amazon is accused of leveraging its position of dominance in marketplaces (the primary market) to gain a significant advantage over competitors in the Italian e-commerce logistics market (the secondary competitive market).

There are interesting aspects on the procedural side, particularly on organizational relations between the European Commission and the national authority.

ICA started the investigation first (April 2019). In November 2020 the EU Commission in turn opened an investigation into the same subject: case AT.40703, Amazon Buy Box [9]. In November 2020, however, the Commission decided to exclude the Italian market from the geographical market under investigation [10]. Thus, the Italian Authority concluded its investigation thanks to the Commission's self-restraint, otherwise it would have had to drop its investigation, in accordance with Article 11(6) of Regulation 1/2003 [11]. With the measure adopted on 30 November 2021, ICA imposed a fine of EUR 1.128 billion on Amazon for infringement of Article 102 TFEU. It also imposed behavioural remedies for the protection of third-party sellers, which must be supervised by a trustee appointed by Amazon with the approval of the ICA.

The Commission's carving-out solution is justified on the principle of cooperation between the Commission and the national competition authorities, even if the business practices followed by Amazon are the same in the European Economic Area. In so doing, the Commission exercised its discretion to define the geographical scope of its investigation, that is, however, subject to judicial reviewable in the courts.

In the system of parallel competencies under Regulation No 1/2003, the authority best placed to deal with the case will act. The EU Commission is in that position if one or several agreements or practices have effects on competition in more than three Member States [12]. Each network member “retains full discretion in deciding whether or not to investigate a case” [13], but the principle of cooperation should always be considered.

In this regard, it is worth quoting the statement issued by the Commission after the publication of the ICA's measure: “We are faced with an example of successful coordination between the European Commission and the Italian Authority, which was ideally placed to conduct a separate investigation into Amazon's conduct in Italy” [14].

This is a major innovation in comparison to the earlier Apple eBooks case.

In 2011-2012, parallel investigations were launched by the European Commission and the UK Office of Fair Trading (OFT). The Commission and the OFT raised concerns about the restriction of competition on e-book retail prices in the European Economic Area. Different contracts were examined, but the underlying commercial policy concerning e-book agency agreements was the same. Eventually, the OFT agreed to let Bruxelles continue its investigation, along with the US Department of Justice [15]. The Commission accepted, in the end, binding commitments by Apple and the four editors under investigation and, shortly afterwards, the commitments offered by Penguin [16].

In the Amazon case, the Commission acted differently and limited the scope of its investigation as a sign of a collaborative attitude.

In the case Amazon, the prohibition of parallel proceedings on the same subject ̶ Article 11(6) of Regulation 1/2003 [17] – was complied with, at least when considering the procedural profile.

As the Court of Justice has pointed out in Slovak Telekom, the Commission's decision to initiate a proceeding does not relieve a national competition authority of its competence to apply Article 102 TFEU, unless the Commission's decision concerns the same anti-competitive practice on the same product market or markets and on the same geographical market or markets during the same period [18]. However, the parallel application of the EU competition rules must be consistent: the network of public authorities should be “managed in the best possible way”. “Furthermore, the parallel application of those rules cannot be at the expense of undertakings”: these ones have a legally protected interest that can be brought to court [19].

Therefore, it is necessary for the coordination mechanism provided by the Regulation to function properly, having regard to the principle of proportionality [20]. Moreover, the ne bis in idem principle gives rise to the fundamental right guaranteed in Article 50, Charter of fundamental rights [21].

Recent case law of the Court of Justice should be considered to assess whether the Commission's carving out decision unfairly compressed the company's protected interest.

Bpost and Nordzucker judgments [22] clarify how the protection against “double jeopardy” should be applied when an identical law infringement is sanctioned in parallel investigations, either by different regulatory authorities of the same EU Member State or by multiple national competition authorities (NCAs) from different EU Member States.

In particular, bpost admits possible duplication of penalties of a criminal nature but only in the case the two proceedings “pursue complementary aims relating to different aspects of the same unlawful conduct” [23].

Limitations to a fundamental right guaranteed by the Charter may be made, insofar as the principle of proportionality is respected, if they are necessary and genuinely meet objectives of general interest. There is no doubt that Article 101 TFEU pertains to a matter of public policy because pursues the essential objective of ensuring that competition is not distorted in the internal market [24]. However, a duplication of proceedings and penalties regarding the same facts, where those proceedings and penalties do not pursue complementary aims relating to different aspects of the same conduct, “cannot in all events be justified under Article 52(1) of the Charter” [25].

The fundamental criterion deals with the identity of the facts. The Court of Justice points out that the question must be examined with reference to the territory, the product market and the period of time during which the conduct took place. If geographical markets are distinct, there is no identity of fact, as pointed out by Slovak Telekom [26].

In light of this case law, the decision taken by ICA does not seem censurable, because it is expressly limited to the Italian market. As for the Commission's carving out decision, it could be justified on the basis of the broad discretion it is granted. This discretion was not exercised arbitrarily by the Commission, which intended to enhance the principle of cooperation that has an essential importance in Regulation 1/2003. In any case, the judicial review of the complex economic appraisals made by the Commission is limited to verifying whether the relevant rules on procedure and the statement of reasons have been complied with, whether the facts have been accurately stated, and whether there has been any manifest error of appraisal or a misuse of powers [27].

The case is generating an overlap in judicial procedures.

Amazon took two legal actions. Before the EU General Court, the company sought annulment of the EU Commission's decision to carve out the relevant geographic market. It considered the Commission's interpretation of Article 11(6) of Regulation 1/2003 to be erroneous and the decision challengeable within the meaning of Article 263 TFEU because it has produced effects that go beyond the procedural framework and substantively alter the rights and obligations of the parties concerned. The Commission's decision should be challenged per se, even though it is a preliminary act.

Before the Italian Administrative Court (Tar Lazio), Amazon challenged the competence of the ICA, the amount of the penalty and the content of the behavioural prescriptions ordered in the November 2021 measure.

As a result, a particular interweaving of processes has emerged.

The EU General Court dismissed the action as inadmissible because it referred to a preparatory act which does not have legal effects within the meaning of Article 263 of the TFEU (order 14 October 2021). Amazon then brought an appeal (Case C-815/21) against the order of the General Court [28].

It is worth noting that the President of the EU Court of Justice authorized ICA to intervene in the appeal proceedings for the annulment of the General Court order, as a party directly interested in its outcome [29]. As pointed out by the presidential order, the legitimacy of the investigation carried out by the ICA – and thus of its decision of November 30, 2021 – depends on whether the Commission's act of initiating the proceedings produces legal effects against Amazon (the General Court denies this in paragraph 51 of its order) [30]. It follows that ICA has a direct and present interest in the decision to be taken by the Court of Justice on the appeal filed by Amazon and, consequently, an interest in the outcome of the case on appeal, pursuant to Article 40(2), Statute of the Court of Justice [31].

Although the two proceedings remain autonomous, the complaints made by Amazon partly overlap. This explains why the Italian Administrative Tribunal (TAR Lazio) found it necessary to stay its judgment until the Court of Justice rules on the appeal brought by Amazon. It affirms the outcome of the case pending before the Court of Justice is relevant to the dispute submitted to its examination, considering both the identity of the complaints formulated by Amazon and the potential consequences on the ICA's measure of the annulment of the Commission's decision. Moreover, TAR Lazio granted a precautionary measure with regard to the behavioral prescriptions ordered by the ICA, which for this time are not applicable [32].

The Italian Administrative Tribunal's decision confirms that the outcome of Amazon's appeal to the European Court is relevant to the ICA's competence which would otherwise have lapsed under Article 11(6) of Regulation 1/2003. The EU General Court seems to have overlooked that the company's substantial position can be affected by the procedural consequences of the Commission's decision.

However, even if the order of inadmissibility were overturned by the Court of Justice, it would still be possible to uphold the legitimacy of the Commission's decision. Indeed, the principle of cooperation could be considered as an adequate reason justifying the discretionary choice that was made by the Commission on the definition of the relevant geographic market.

If the disputes in the courts are still open, on the substantive level the EU Commission accepted in December 2022 the commitments submitted by Amazon on the two conducts under investigation: the preferential treatment of its logistics service FBA, and the use of not public data of third-party sellers operating on its marketplace.

The Commission likely used the behavioural requirements imposed by the ICA on the first conduct as a precedent to achieve fairer market conditions through the commitments obtained by Amazon, covering both conducts.

On an institutional level, this outcome is consistent with the principle of cooperation between the Commission and national competition authorities. The cooperative method may be useful in this transition phase to the implementation of the DMA and could help overcome the concerns of some national authorities who wish to react to the exclusive competence given to the Commission as “the sole authority” empowered to enforce the Regulation 2022/1925 [33]: it is noteworthy, in this regard, the ongoing debate in Germany in view of the 11th Amendment of the Gesetz gegen Wettbewerbsbeschränkungen (Act Against Restraints of Competition) and the Netherlands [34].

As to the effectiveness of the remedies in the December 2022 commitments, accepted by the Commission, these are specific and do not undermine Amazon's business model. The Monitoring Trustee – who will be appointed by Amazon to verify that commitments are met over seven years – does not affect the company's organizational autonomy and does not compromise the Prime bundle [35]. That can be seen in a positive way from a business efficiency perspective.

However, there are also doubts. The commitments do not require any operational or structural separation between Amazon's platform and retail businesses. It has also been noted that Amazon does little more than “commit” to complying with the new European legislation right now [36]. Its considerable market power remains largely intact.

Mario Midiri

[1] On the designation of gatekeepers see Article 3 DMA. Following their designation, gatekeepers will have six months to comply with the requirements in the DMA, at the latest by 6 March 2024. The new Regulation intends to minimise “the detrimental structural effects of unfair practices ex ante, without limiting the ability to intervene ex post under EU and national competition rules”: Explanatory Memorandum of the proposal, 15 December 2020, COM(2020), 842 final. Its legal basis is Article 114 TFEU: the purpose of the Regulation is “to contribute to the proper functioning of the internal market by laying down rules to ensure contestability and fairness for the markets in the digital sector in general, and for business users and end users of core platform services provided by gatekeepers in particular” (see recital 7, DMA).

[2] Google and Facebook are two advertising empires, Amazon an e-commerce platform, Apple a device seller with a successful complement (the App Store), Microsoft a software and cloud provider. Organising principles around business models are needed to convert the provisions of DMA into actionable rules: C. Caffarra, What are we regulating for? at voxeu.org, 3 September 2021.

[3] See the technical workshops with interested stakeholders to gauge third party views on compliance with gatekeepers' obligations under the DMA: the first one took place on 5 December 2022 focusing on the “self-preferencing” provision; the second one was on 27 February 2023 around Article 7 of the DMA, i.e., facilitating interoperability between messaging services. It should be noted the DMA re-elaborates and generalises cases the antitrust authorities and the courts have already dealt with. Articles 5 and 6 contain a total of about 15 rules, each a synopsis of an antitrust investigation. Some rules might also feature in a common carrier regulation: no discrimination, no self-preferencing, access rights.

[4] See Amazon's Empire, thevalueengineers.nl/amazons-empire. Amazon's business practices provided the impetus for Lina Khan, now chair of the FTC, for her well-known analysis of the antitrust action: L. Khan, Amazon's Antitrust Paradox, Yale Law Journ., 2017, 126, 710.

[5] More than 73 percent of all Amazon Marketplace sellers reportedly rely on this program to fulfill their orders: see the section devoted to Amazon's Fulfillment and Delivery Program (FBA) in US House of Representatives, Judiciary Committee, Sub-Committee on Antitrust, Investigation of Competition in the Digital Marketplace: Committee Report and Recommendations (October 2020), 207-276.

[6] H.J. Hovenkamp, Monopolizing and the Sherman Act (2022), at scholarship.law.upenn.edu: “Many of the injuries imposed by dominant platforms occur in complementary or vertically related markets in which monopoly is not seriously threatened”. This poses problems for §2 of the Sherman Act, which “requires a realistic threat of dominance in the particular market where the injury is claimed”. Hovenkamp draws attention to the abuses of dominant position sanctioned by European law: “Of all the reforms that antitrust law in the United States might take, switching to this “abuse” standard would be the most beneficial, provided that the concerns are managed properly”.

[7] According to the ICA, Amazon makes its logistics and distribution service FBA the only way for retailers to obtain indispensable opportunities in the marketplace. In this way, Amazon exploits its “super-dominant” position in marketplaces to increase demand for its logistics service from third-party sellers at the expense of competing services. “This qualifies the company's conduct as self-preferencing”: ICA decision 30.11.2021, A528, n. 29925, FBA Amazon, §§ 714-716. ICA focuses on the effects of Amazon's conduct in order to demonstrate that: (i) it produces exclusionary effects in both the primary and secondary markets; (ii) it reduces consumer welfare in both markets; (iii) it does not generate efficiency gains or innovation that would offset the anticompetitive effects; (iv) it has no further objective justification (§§ 801-848).

[8] Access to Prime increases the likelihood that a seller's offer will be selected as a Featured Offer displayed in the Buy Box. Moreover, third-party sellers using FBA are not subject to the performance indicators that Amazon applies to monitor the performance of non-FBA sellers: see ICA decision, §§ 762 ff.

[9] The proceeding concerned the conditions and criteria that govern the selection mechanism of the Buy Box to assess whether these criteria lead to preferential treatment of Amazon's retail business or of the sellers that use Amazon's logistics and delivery services. On 15 June 2022, the Commission adopted a preliminary assessment in case AT.40703–Amazon Buy Box (the Italian market was excluded). In July 2019 a distinct investigation had been opened into Amazon's use of marketplace sellers' non-public business data (AT.40462). At last, on 20 December 2022 the Commission accepted commitments by Amazon barring it from using marketplace seller data and ensuring equal access to Buy Box and Prime (ec.europa.eu/commission/presscorner/detail/en/ip_22_7777). These commitments apply to all Amazon Stores, except for the commitments referred to the application of objectively verifiable, non-discriminatory conditions and criteria in determining the Featured Offer (paragraphs 3 to 24) which do not apply to Amazon's Italian Store.

[10] “The Commission has informed Amazon and the competition authorities of the Member States that it has opened a second in-depth investigation into Amazon's business practices. This investigation will cover the European Economic Area, with the exception of Italy. The Italian Competition Authority started to investigate partially similar concerns last year, with a particular focus on the Italian market. The Commission will continue the close cooperation with the Italian Competition Authority throughout the investigation”: Commission sends Statement of Objections to Amazon for the use of non-public independent seller data and opens second investigation into its e-commerce business practices (November 10, 2020), at ec.europa.eu/commission/presscorner/detail/en/ip_20_2077.

[11] Article 11(6): “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 81 and 82 of the Treaty. If a competition authority of a Member State is already acting on a case, the Commission shall only initiate proceedings after consulting with that national competition authority”.

[12] This also applies where “a case is closely linked to other Community provisions which may be exclusively or more effectively applied by the Commission, if the Community interest requires the adoption of a Commission decision to develop competition policy when a new competition issue arises or to ensure effective enforcement”. A single national competition authority (NCA) is usually well placed to deal with agreements or practices that substantially affect competition mainly within its territory and when its action is sufficient to bring the entire infringement to an end, although more than one NCA can be regarded as well placed. See again Notice on cooperation, 2. Division of Work, 2.1. Principles of allocation, nn. 5, 10-14.

[13] See the above-mentioned Notice on cooperation, 2.1 (5), 2.2, 3.1.

[14] Brussels praises Italy for fining Amazon €1.1 billion in antitrust case, in Euractiv, 10 December 2021, euractiv.com/section/e-commerce/news.

[15] The EU Commission and the UK Office of Fair Trading have investigated in parallel and close cooperation until March 2011, after which the Commission opened formal proceedings and the OFT closed its investigation on grounds of administrative priority.

[16] EU Commission, decision 12/12/2012, case COMP/39847, Hachette, HarperCollins, Apple et al.: ec.europa.eu/commission/presscorner/detail/en/IP_12_1367. This decision makes the commitments proposed by Apple and the four publishers legally binding under Article 9, Regulation No. 1/2003. As for Penguin, see decision 25/07/2013, case AT.39847, ec.europa.eu/commission/presscorner/detail/en/IP_13_746. The companies offered to terminate on-going agency agreements and to exclude certain clauses in their agency agreements during the next five years. The publishers have also offered to give retailers freedom to discount e-books, subject to certain conditions, during a two-year period. After a market test (see IP/12/986), the Commission concluded that the final commitments remedy the competition concerns (see also MEMO/12/983) and are suitable for restoring and maintaining retail price competition for the sale of e-books in the EEA. As to the U.S. investigation, see United States v. Apple Inc., 791 F. 3d 290, 297 (2d Cir. 2015): upheld 952 F. Supp. 2d 638 (2013), at law.justia.com/cases/federal/appellate-courts/ca2/13-3741/13-3741-2015-06-30.html. The petition for certiorari was denied on March 7, 2016: U.S. Supreme Ct, No. 15-565, scotusblog.com/case-files/cases/apple-inc-v-united-states. Cf. B. Klein, The Apple E-Books Case: When is a Vertical Contract a Hub in a Hub-and-Spoke Conspiracy?, Journal Competition Law & Economics, 2017, at ssrn.com/abstract=3018841.

[17] On case allocation, see Commission, Notice on cooperation within the Network of Competition Authorities (2004/C 101/03), O.J.E.U., 27.4.2004, C101/43; S. Brammer, Concurrent Jurisdiction Under Regulation 1/2003 and the Issue of Case Allocation, 42 Common Market Law Review, 2005, 1383-1424; A. Outhuijse-K.J. Cseres, Parallel Enforcement and Accountability: the case of EU Competition law, in M. Scholten-M. Luchtman (eds.), Law Enforcement by EU Authorities, Edward Elgar, 2017, 82-115; P. Van Cleynenbruegel, Case (re)Allocation Against the Backdrop of Procedural Convergence: Time for a Regulation ‘2' Upgrade?, 11 J. Eur. Comp. Law & Pract., 2020, 418-422; B. Marchetti, Le garanzie procedurali e processuali delle imprese nella Rete europea della concorrenza, Rivista reg. mercati, n. 1/2014.

[18] ECJ, judgment 25 February 2021, Slovak Telekom, C‑857/19, ECLI:EU:C:2021:139, paragraph 33.

[19] Slovak Telekom, paragraph 32: “National competition authorities being relieved of their competence makes it possible to protect the undertakings from parallel proceedings brought by those authorities and the Commission”; see also ECJ, judgment 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 18, and order 29 January 2020, Silgan Closures and Silgan Holdings v Commission, C‑418/19 P, EU:C:2020:43, paragraph 73.

[20] On “strict compliance with the principle of proportionality”, ECJ, judgments 20/03/2018, Garlsson Real Estate, C‑537/16, ECLI:EU:C:2018:193, para. 48; 20/03/2018, Di Puma, Zecca, C‑596/16 and C‑597/16, ECLI:EU:C:2018:192, para. 43.

[21] The non bis in idem principle is a fundamental principle of EU law: ECJ, judgments 15/10/2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 59; 20/03/2018, Menci, C‑524/15, EU:C:2018:197, paragraph 25 and the case-law cited.

[22] ECJ, judgments 22/03/2022, bpost SA, C‑117/20, ECLI:EU:C:2022:202, para. 50; 22/03/2022, Nordzucker AG, C‑151/20, ECLI:EU:C:2022:203.

[23] ECJ, judgment bpost SA, para. 50: national rules which provide for the possible duplication of proceedings and penalties under sectoral rules and competition law “are capable of achieving the objective of general interest of ensuring that each of the two sets of legislation concerned is applied effectively”, since they are pursuing distinct legitimate objectives. See also ECJ, judgment Menci, para. 44.

[24] ECJ, judgments 1 June 1999, Eco Swiss, C‑126/97, EU:C:1999:269, paragraph 36; 13 July 2006, Manfredi, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 31.

[25] ECJ, Nordzucker, §§ 56-57: “if two national competition authorities were to take proceedings against and penalise the same facts in order to ensure compliance with the prohibition on cartels under Article 101 TFEU and the corresponding provisions of their respective national law, those two authorities would pursue the same objective of general interest”.

[26] See also judgment Nordzucker, §§ 41, 58 and judgment 14/02/2012, Toshiba, C‑17/10, EU:C:2012:72, paragraph 99.

[27] On the Commission's broad discretion, ECJ, judgment 28/05/1998, Deere v. Comm., C-7/95 P, ECLI:EU:C:1998:256, § 34; General Court, judgments 18/09/1992, Automec v Commission, T‑24/90, EU:T:1992:97; 15/12/2010, T‑427/08, CEAHR v. Comm., ECLI:EU:T:2010:517; 17/12/2014, T‑201/11, Simobil v. Comm., ECLI:EU:T:2014:1096, § 85; see also General Court, order 14/10/2021, Amazon v Commission, T‑19/21, ECLI:EU:T:2021:730, § 31.

[28] See Amazon's appeal under Article 56 of the Statute of the Court of Justice, brought on 21 December 2021, Case C‑815/21 P.

[29] As provided in the second paragraph of Article 40 of the Statute of the EU Court of Justice, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between those States and such institutions, is entitled to intervene in that case. According to settled case-law, the concept of an "interest in the result of a case" must be defined in the light of the precise subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law raised or the arguments put forward. The words "result of a case" refer to the final decision sought, as set out in the operative part of the future judgment or order (see, in particular, orders of the President of the Court of 27 February 2019, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, EU:C:2019:174, paragraph 7, and of 11 March 2022, Silver and Others v Council, C‑499/21 P, EU:C:2022:199, paragraph 6).

[30] According to the presidential order 14/07/2022, C-815/21, ECLI:EU:C:2022:596, the following dilemma arises. If, as the General Court held, the Commission's decision does produce no legal effects, its possible unlawfulness (on the basis that the Commission was required to initiate an investigation procedure covering the entire territory of the European Economic Area) cannot have the effect of depriving the ICA of the power which it had, under Article 11(6) of Regulation 1/2003, to apply Articles 101 and 102 TFEU. On the other hand, if the Commission's decision were to be regarded as producing such effects, “the question of its lawfulness would have a direct impact” on the ICA's competence and, as a result, on the lawfulness, under EU law, of the decision of the ICA of 30 November 2021.

[31] ECJ, presidential order 14/07/2022, paras 13-16.

[32] T.A.R. Lazio, Roma, order 10/03/2022, n. 1530; order 28/10/2022, n. 13945, at giustamm.it.

[33] NCAs have been given a role in assisting the EU Commission. Member States can grant their NCA the competence and investigative powers to investigate non-compliance with the DMA. Before taking a first formal investigative measure, the national authority shall inform the Commission: Article 38(7), Regulation 2022/1925. This could be relevant where it is unclear from the outset whether a gatekeeper's behaviour can infringe the DMA or the competition rules (see recital 91, DMA).

[34] In the Netherlands a consultation is being held on a proposed law that intends to give the Consumer and Market Authority (ACM) the power to monitor compliance with the DMA, initiate investigations and exchange information with the European Commission (the bill also provides for other adjustments necessary for the implementation of the DMA, such as an amendment to the Code of civil procedure to clarify cooperation between the European Commission and national courts).

[35] However, the Commission may give any orders or instructions to the Monitoring Trustee in order to ensure compliance with the commitments. The Monitoring Trustee shall appoint a technical expert and may appoint other advisors, if necessary. Should Amazon refuse to approve the technical expert and/or advisors proposed by the Monitoring Trustee, Amazon may propose an alternative expert and/or advisor within 14 calendar days. On this too, the Commission can intervene. It may reject Amazon's alternative proposal and approve the appointment of the initial or another technical expert and/or advisors alone, against Amazon's objection. Only the Monitoring Trustee shall be entitled to issue instructions to the technical expert and/or advisors. See Amazon Commitments to the European Commission, Case COMP/AT.40462 and Case COMP/AT.40703, nn. 20-30.

[36] Uni Europa, Feedback to European Commission's request for comment on Amazon's proposed commitments concerning marketplace seller data and access to Buy Box and Prime (September 8, 2022), at uni-europa.org.