Bundesgerichtshof hears case on price control mechanisms on amazon.de
The Cartel Senate of the Bundesgerichtshof (BGH, Federal Court of Justice) has scheduled a hearing in this matter for 26 January 2027 at 9.00 a.m. in Courtroom E 101. The proceedings (case no. KVB 13/26) concern the permissibility under antitrust law of certain price control mechanisms used by Amazon.com, Inc., as the parent company of the Amazon Group, and the Luxembourg subsidiary Amazon EU S.à.r.l. on the amazon.de marketplace.
According to the press release of the Bundesgerichtshof, the proceedings concern a decision of the Bundeskartellamt (German Federal Cartel Office) dated February 4, 2026. The authority publicly announced the decision on February 5, 2026; the full text of the decision B2-73/20 was published on April 30, 2026.
Background to the antitrust authority proceedings
Paramount cross-market significance under § 19a GWB
Amazon has been finally determined by the Bundeskartellamt to be an undertaking of paramount cross-market significance for competition within the meaning of § 19a Abs. 1 GWB (German Act against Restraints of Competition). On this basis, the Bundeskartellamt may prohibit certain conduct by undertakings under specific conditions if the statutory requirements are met.
According to the published information, the contested order is not based solely on § 19a Abs. 2 Satz 1 Nr. 2 GWB. It is additionally based on § 19 Abs. 1, Abs. 2 Nr. 1 GWB and on Art. 102 AEUV (Treaty on the Functioning of the European Union). In its announcement of the hearing, the Bundesgerichtshof particularly highlights the provision of § 19a GWB because it has jurisdiction at first and last instance for proceedings under this provision.
Importance of the marketplace for third-party sellers
According to the Bundeskartellamt, around 60 percent of the goods distributed via amazon.de are sold by independent third-party sellers and not by Amazon Retail. The antitrust authority’s review therefore concerns mechanisms that may capture offers from such sellers on the platform.
According to the authority’s publications, three different price control mechanisms are at the center of the matter. One of these mechanisms concerns so-called pricing errors. If price caps are exceeded, offers may, according to the Bundeskartellamt, be removed or not displayed in the highlighted shopping field, the so-called Buy Box.
Content of the Bundeskartellamt’s order
Prohibition of certain sanctions against sellers
By decision of February 4, 2026, the Bundeskartellamt prohibited Amazon, for the future, from deactivating offers from sellers not affiliated with Amazon or from denying them potential access to the so-called “Featured Offer” if the sellers charge prices that exceed thresholds calculated by Amazon for the respective product.
Under the order, the price control mechanisms are to be permitted to cover only those offers whose prices are grossly disproportionate to the goods or services offered. In particular, transactions resembling usury are mentioned. Offers that are incompatible with other statutory pricing requirements may also be covered.
According to the public statement by the Bundeskartellamt, the authority’s President Andreas Mundt justified the decision on the grounds that Amazon is in direct competition with marketplace sellers on its own platform. According to this assessment by the authority, influencing their prices is permissible only in absolutely exceptional cases, such as usurious pricing.
Transparency and information obligations toward sellers
In addition to prohibiting certain measures, the decision contains requirements for informing sellers. Amazon is to inform sellers about the basic functioning of the price control mechanisms, the frequency with which the thresholds are adjusted, and the respective consequences of non-compliance with the thresholds.
The Bundeskartellamt also sets out certain requirements for notifications regarding sanctions imposed in individual cases. According to the authority, Amazon is to cease or adapt the challenged conduct, including the related general terms and conditions and notification practices, within nine months. At the same time, the Bundesgerichtshof’s announcement of the hearing points out that the decision grants Amazon certain implementation periods.
Further findings by the authority and procedural steps
Disgorgement of economic benefits
In the same decision, the Bundeskartellamt additionally ordered the disgorgement of an economic benefit initially set at EUR 59 million against Amazon. This point is not mentioned in the Bundesgerichtshof’s press release on the hearing date.
According to the published information, this is the first application of the new provision on disgorgement of the economic benefit derived from an antitrust infringement. Based on the available information, the amount has been set provisionally and may change as long as Amazon adheres to the price caps.
Investigative and coordination measures by the authority
In autumn 2024, according to published information, the Bundeskartellamt surveyed 2,000 representatively selected online sellers regarding the price controls. According to the information provided, Amazon uses statistical models for dynamic, changing price caps.
The Bundeskartellamt also stated that it had closely coordinated the proceedings with the European Commission. The transparency requirements had been coordinated with the Bundesnetzagentur (Federal Network Agency) as the enforcement authority for the Platform-to-Business Regulation.
As an alternative means of promoting low prices, the Bundeskartellamt points out that Amazon could also create corresponding incentives by reducing the fees and commissions payable by sellers. This statement reflects the authority’s assessment and is not the subject of a final decision by the Bundesgerichtshof in the announced interim proceedings.
Amazon’s appeal and interim proceedings before the Bundesgerichtshof
Appeal and application for suspensive effect
Amazon has lodged an appeal against the Bundeskartellamt’s decision with the Bundesgerichtshof. For appeals in proceedings under § 19a GWB, the Bundesgerichtshof has jurisdiction at first and last instance. According to the Bundeskartellamt, Amazon had a one-month period after the decision in which to lodge the appeal.
At the same time, Amazon applied for suspensive effect of the appeal to be ordered. According to the decision, this application for interim relief results in the implementation periods being suspended until the conclusion of the interim proceedings. Amazon therefore does not have to comply with the order for the time being.
The scheduled hearing concerns the application for interim relief. In these proceedings, the Bundesgerichtshof will have to examine whether there are serious doubts as to the legality of the contested order.
No final decision on the merits
The proceedings are pending. According to the announcement of the hearing, there is no final decision by the Bundesgerichtshof on the legality of the order on the merits.
Insofar as antitrust allegations and assessments by the authority are at issue in the proceedings, the current procedural status must be taken into account. The appeal is directed against the authority’s order; the announcement of the hearing does not indicate any final judicial confirmation by the Bundesgerichtshof of the contested orders.
EU law objections at the center of the first hearing
Jurisdiction of the Bundeskartellamt as a point of dispute
The Cartel Senate has informed the parties to the proceedings that more than one hearing is planned in this case. At the first hearing, the focus is to be in particular on Amazon’s objection that, due to provisions of EU law, the Bundeskartellamt lacked the authority to issue the orders made.
According to the statement by the Bundesgerichtshof, this concerns in particular Art. 1 Abs. 6 Satz 2 Buchst. b of the Digital Markets Act and Art. 3 Abs. 2 of the E-Commerce-Richtlinie (E-Commerce Directive) as well as § 3 Abs. 2 of the Digitale-Dienste-Gesetz (German Digital Services Act).
As early as February 2026, Amazon had publicly criticized the decision, saying it was based on a purely German provision and would lead to fragmentation of the European single market. This argument corresponds to the EU law objection which, according to the announcement of the hearing, is to play a central role at the first hearing.
Relevant regulatory contexts
The provisions identified by the Bundesgerichtshof concern different levels of competition and digital law. At its core, the issue is whether and to what extent national competition rules may be applied alongside requirements under EU law.
Under Art. 1 Abs. 6, the Digital Markets Act leaves unaffected the application of certain national competition rules. These include, among others, national provisions prohibiting other forms of unilateral conduct, insofar as they are applied to undertakings other than gatekeepers or impose further obligations on gatekeepers.
The E-Commerce-Richtlinie contains in Art. 3 Abs. 2 the country-of-origin principle for information society services. At the same time, Art. 1 Abs. 5 Buchst. c of the directive provides that it does not apply to matters relating to agreements or practices governed by antitrust law. In § 3 Abs. 2, the Digitale-Dienste-Gesetz likewise provides that the free movement of digital services from other Member States is, in principle, not to be restricted; however, § 3 Abs. 4 Nr. 8 excludes agreements or practices governed by antitrust law.
Reactions and classification of the pending proceedings
Statements by the parties involved
Rocco Bräuniger, head of Amazon Germany, publicly described the decision as an “unprecedented decision by an authority” and accused the authority of not having understood how competition-oriented retail works. This statement should be regarded as a statement by a company representative in connection with ongoing proceedings.
By contrast, the Bundeskartellamt takes the view that the challenged price control mechanisms may unlawfully impair the business activities of marketplace sellers. This assessment by the authority is the subject of the contested order and will be reviewed in the court proceedings.
Significance for platforms and sellers
The proceedings concern fundamental questions regarding antitrust control of large digital platforms. In particular, they touch on the distinction between permissible platform design, price and quality control, and potential impediments to independent sellers.
For companies, investors and sellers connected with digital distribution models, the further course of the proceedings is of considerable practical relevance. The decision in the interim proceedings will initially concern the question of whether there are serious doubts as to the legality of the order and whether Amazon must implement the authority’s orders on a provisional basis.
Advice in competition law from MTR Legal
The dispute shows how closely platform regulation, antitrust law and distribution-related business models can be intertwined. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on competition law matters with a national and international dimension. For legal questions relating to market conduct, platform distribution or proceedings before antitrust authorities, you can find further information at Legal advice in competition law.
