Right on Valentine's Day, a commercial day par excellence, the news is that the Consumer and Market Authority (the "ACM"), is investigating bol.com (1). Or rather, only to bol, now that the company has indicated it will no longer use the .com.
Bol has one of the largest online platforms in the Netherlands. Whereas it used to be the case that bol sold all its stuff itself, nowadays the platform is a kind of marketplace. Anyone who wants to can (according to bol's terms and conditions), offer products for sale on the platform. This is advantageous for both bol and the merchants. After all, there is a larger supply and greater reach.
Apparently, not all merchants are equally satisfied. In fact, the ACM press release shows that several parties have complained about bol. The offers of these parties would be less visible than those of bol or selected partners, even at more favorable prices or quality. Thus, bol would favor products of itself or of certain entrepreneurs. In addition, bol would use data obtained through the online platform to strengthen its own position on the platform, without merchants' consent.
These are, of course, reports from other parties. For sphere, too, is innocent until proven guilty. Apparently, however, the reports are of such a nature for the ACM to launch an official investigation.
ACM, as the regulator, is charged with monitoring free competition within the Netherlands. In other words, the ACM ensures that there is no unfair competition.
If the allegations against sphere turned out to be true, it would restrict free competition. After all, consumers would not be shown the products with the lowest price or the best price/quality ratio. They may therefore buy more expensive products than would be the case if these merchants' products were properly visible.
Legally (1), this is referred to as abuse of a dominant economic position. It is not illegal for a company to have an economic dominance. A monopoly is also allowed to exist. What is not allowed is to abuse it. For example, by being a platform that makes other parties' products less findable than its own products, or the products of preferred suppliers.
Whether there will really be an abuse of an economic power position, or perhaps a "minor" violation, is difficult to say at this time. Bol itself says it is cooperating fully with the ACM, as it is legally obliged to do. Even if the ACM were to determine that the complaints are well-founded, bol will also be given the opportunity to defend itself. There may be good explanations for the complaints.
Nevertheless, bol will not be happy about this. After all, it is negative publicity. Moreover, many online platforms are often suspect anyway, as evidenced by the various legal proceedings against Google, among others. Bol itself always tries to be seen as a "positive" brand and of course it cannot use an investigation like this.
In the most unfavorable scenario for globe, fines could be imposed by the ACM and merchants on the platform could seek to recover their losses. Even claims from consumers for deception and overpricing are not out of the question. All will depend heavily on the outcome of the investigation and bol's response.
ACM itself indicates (2) that it will conduct more inspections of online platforms. It is also required to do so because of recent European regulations, including the Digital Services Act (3) which imposes far-reaching obligations on online platforms.
Bol may also serve as a warning to other platforms. After all, if investigations show that Bol has violated the law, other platforms will be quick to discontinue such practices. We are familiar with this method of enforcement from the Autoriteit Persoonsgegevens in the context of the AVG, for example. After all, the example function is strong, but another reason is that government regulators have limited enforcement capacity.
So exactly how it will play out remains to be seen.
We conclude with some recommendations:
If you have your own online platform on which several parties offer products, make sure that the rules are the same for everyone and that you do not give preferential treatment to your own products. Also check whether you comply with the various tightened (European) rules, as a lot is changing, especially for online platforms.
If you are a trader on an online platform, keep a close eye on whether the platform's rules are clear and, above all, whether they are applied transparently and fairly. If not, complain about it. Start with the platform first and give it a chance to respond. If not, complain to the ACM, or possibly go to court.
Questions? Contact the IP/ICT & Privacy Law team (4).
Read the original: https://vil.nl/nl/blog/strenge-regels-voor-online-platforms-acm-doet-onderzoek-naar-oneerlijke-mededinging-door-bol
(1) This includes the Competition Act, the Treaty on the Functioning of the EU, the P2B Regulation and the Digital Markets Act.
(2) https://www.acm.nl/nl/organisatie/missie-en-strategie/onze-agenda/acm-agenda-2022-2023/digitale-economie
(3) https://vil.nl/nl/blog/de-digital-services-act-een-introductie
(4) https://vil.nl/nl/advocaten#discipline=11&branch=&lawyer=
