Given all that’s been happening on the competition/IP interface in recent months (and the aversion of most competition lawyers to looking at contracts), it’s easy to see why ‘most favoured nation’ clauses may not been at the forefront of our minds. However, building on the (brief) antitrust analysis of such clauses in the US and EU e-books investigations (see here), as Christmas shopping panic sets in the UK and German competition authorities may have done us all a favour…*
Both authorities have recently brought to a conclusion parallel investigations into Amazon’s ‘price parity’ policy. Amazon had insisted on contractual provisions which meant that sellers on its Marketplace platform had to offer their lowest prices through Amazon, in effect preventing third party sellers from offering the same products for less on other platforms such as eBay or indeed their own sites online. Both the OFT and the Bundeskartellamt only agreed to close their investigations once they were happy that not only had Amazon ceased to have its ‘price parity’ policy in place, but also that it had communicated its change of policy to third parties.
The cases are another good example of the appetite of national competition authorities (NCAs) for looking into problematic vertical restraints, and the coordination that one can now expect to be a given through the European Competition Network (ECN).
Speaking of which, of course many of the policies pursued by giants of the online world such as Amazon are set on a global basis. For a interesting view from the other side of the Atlantic (albeit with little comment on antitrust issues), see here.
* Depending of course on how reliant one is on Amazon!