The Luxembourg Competition Authority rejects an application for interim measures in a case concerning a foreclosure from the Amazon Marketplace


Introduction
Two years after its no-infringement decision in the Case 2017-C02-Amazon, in the Case n. 2019-MCP-01, Amazon ServicesEurope, the Luxembourg Competition Authority (LCA) once again dealt with the issue whether the Amazon’s policies as for the access of independent sellers to its e-marketplace constituted an abusive of dominant position. This time, by the decision of 3 July 2019 in Amazon Services Europe, the LCA considered an application for interim measures against Amazon Services Europe Sarl (Amazon). This request was filed by a merchant that claimed that the Amazon’s decision to foreclose him from its online platforms access breached competition law. The application was rejected by the LCA because the statutory requirements for the granting of interim measures were not satisfied.
The facts of the case
The facts of the case in Amazon Services Europe were similar to those in Amazon. The applicant, Mr. HD, was a France-based independent seller admitted to the Amazon Marketplace from which he sold cameras and drones. The applicant complained that Amazon unilaterally changed the contractual terms and conditions that applied to the sales made by the merchants via the online platform. These amendments, which concerned the reselling prices and delivery time, were unfavourable for Mr HD who had then to bear some financial losses.
Lastly in January 2017, following an unsatisfactory exchange of emails between Amazon and Mr HD, Amazon terminated the contract for the provision of access to the Amazon marketplace concluded with the applicant. Then, Amazon closed the trading account of the applicant.
Only two years later, in March 2019, Mr HD filed an application with the LCA for the adoption of interim measures against Amazon. Because the conducts of Amazon, as described above, amounted to an abuse of dominant position in breach of Article 102 TFEU and the corresponding Article 5 of the Luxembourg Competition Law (LCL), the applicant asked the LCA to order Amazon to reopen his trading account and cease its abusive conducts.
The decision of the LCA
Article 12 of the LCL empowers the Chairman of the LCA to grant interim measures provided that a number of procedural and substantive conditions are met. In Amazon Services Europe Amazon, the LCA focused on the following requirements: i) prima facie finding of infringement; ii) serious and irreparable damage to the applicant and the economic public order; iii) situation of urgency.
i) The prima facie finding of infringement
According to the legal test developed by the LCA in its past decisional practice (Case 2012-MC-02, Telecom Luxembourg v EPT; Case 2008-MC-01, EPT), for interim relief to be granted there must sufficiently strong indicia of a competition breach. In that regard, when the application for interim measures concerns an abusive conduct, it is necessary to consider whether the respondent has a dominant position. That requires the identification, at least summarily, of the relevant market and that the conducts of the dominant firms may be considered as abusive under Article 5 LCL or Article 102 TFEU.
Mr HD argued that the relevant product market was the market for the provision of on-line platform services, which on the seller side included only the firms that do not have by themselves Internet visibility. The market definition proposed by the applicant was rejected by the LCA. It pointed out that to correctly define the relevant markets, the competitors of Amazon should be considered, looking in particular at whether and to which extent the different online platforms are substitutable.
The next step is to assess whether the respondent has a dominance position. To show that this the case, Mr HD submitted in the markets a market survey (Opinion 12-A-20) made by the French Competition Authority (FCA) from which it emerged that Amazon would have a very strong market position, described as ‘prédominante’ by the FCA. The LCA observed that the FCA survey only indicated that Amazon, eBay and PriceMinister had the most visited sites and that it could not be inferred from this statement that Amazon had a dominant position.
ii)Serious and irreparable damage to the applicant and to the economic public order
Mr HD failed to indicate how the challenged Amazon conducts would harm public interest. He only claimed that Amazon prevented him from selling his products online because as he was linked by a relationship of strong economic dependence with Amazon.  
The LCA noted that in Amadeus (Case no 19-MC-01), to determine where interim measures can apply to a situation of economic dependence, the FCA crafted a four-limb test: i) the brand of the supplier have a sufficient notoriety; ii) the supplier has a substantial share of the relevant market; iii) the supplier accounts for a substantial share of the turnaround of its customers; iv) the customer has no alternative options with comparable technical and economic conditions. Therefore, should the Amadeus test apply to Amazon Services Europe, to establish a serious and irreparable damage to his business, the applicant has to prove that the termination of the platform access contract would prevent him from selling online his products on comparable conditions.
That said, however, the LCA took the view that Amadeus could not be followed in Amazon Services Europe because the facts of the case were different. First, in Amadeus Google had a market share much higher than that of Amazon. Second, unlike in Amazon Services Europe, in Amadeus there were relevant entry barriers. Moreover, the LCA reminded that in Telecom Luxembourg v EPT it held that the application for interim relief should be substantiated with sufficiently strong evidence. The application will fail when it is grounded on generic arguments that are not corroborated by facts.
Applying this principle to the facts of in Amazon Services Europe, the LCA was rather unhappy with the evidence submitted by Mr HD in support of his application. He argued that having no longer access to the Amazon Marketplace would inflict serious and irreparable damages to his retail activities. Importantly, the LCA noted that Mr HD did not show that, after being foreclosed by the Amazon Marketplace, he would be unable to sell online from the other e-commerce platforms. For these reasons, the LCA reached the conclusion that Mr HD failed to prove to the requisite standard this requirement.
The document submitted by the applicant indicating that he was a member of the Rakuten platform was insufficient to reverse this finding. In addition, the applicant did not indicate which steps he took to selling his products from the competing online platforms.
iii)The situation of urgency
Article 12 of LCL that interim measures must be adopted within a short time limit to effectively address the risk of serious and irreparable damage. However, in Amazon Services Europe more than two years elapsed from the closing of the Mr. HD’s trading account and the filing of the application for the interim measures. In the view of the LCA, such a long period of time was clearly incompatible with the urgency character of interim measures.
Conclusions
Amazon Services Europe confirms the strict evidentiary standard applied by the LCA when determining applications for interim measures. For such applications to be successful, petitioners must prove the likelihood of a given competition breach as well as, amongst other things, a serious and irreparable harm to his business activities. To this end, applicants are expected to submit specific and concrete facts and circumstances showing the damages suffered as a result of the anti-competitive practices of which they complain. Generic statements unsupported by facts are not enough to demonstrate such damages. Thus, in case of an anticompetitive foreclosure from an e-commerce platform, to obtain the requested interim relief, the applicant should give convincing evidence that he is unable to carry out his retail activities from the other online platforms.
A further lesson that can be drawn from Amazon Services Europe is that an application for interim measures must be promptly lodged after the occurrence of the alleged competition breach. The longer this goes on from that point in time, the less likely that the LCA considers that there is an urgency requiring the granting of interim relief.

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