German competition authority deploys novel "profit skimming" power for the first time

The FCO's decision

The decision on February 5, 2026 follows a statement of objections issued in June 2025 and focuses on certain rules Amazon allegedly imposed on marketplace sellers with regard to their pricing.

According to the FCO's investigation, Amazon's e-commerce platform accounts for approximately 60% of online retail sales in Germany. On its platform, next to its own sales, Amazon enables third-party sellers to market their products, while being responsible for setting their own prices and bearing their own commercial risk.

The FCO found that Amazon had applied various price control mechanisms to third-party sellers' pricing. When these mechanisms determined that a seller's price was “too high,” according to the FCO, the relevant offer was either removed from the marketplace entirely or excluded from the prominent “Buy Box,” which is the featured purchasing option on product pages. According to the FCO, such restrictions could result in significant revenue losses for affected sellers.

In addition, the FCO held that Amazon did not provide sufficiently clear rules on how it determines its price caps. This allegedly created problematic unpredictability on the sellers’ side.

According to FCO President Andreas Mundt, “Amazon directly competes with the other marketplace sellers on its platform. Therefore, influencing its competitors’ pricing, including through price caps, is only permissible in the most exceptional cases, such as in the event of excessive pricing.”

The FCO concluded that these practices constituted an abuse under both the special provisions for large digital undertakings (Section 19a of the German Competition Act) and the general abuse provisions of Section 19 GWB and Article 102 TFEU. The fact that Amazon’s practice was likely intended to protect consumers from inflated pricing apparently did not convince the agency.

Amazon must now cease applying its existing price control mechanisms and may only deploy such tools in exceptional circumstances, particularly in the event of excessive pricing, and only in accordance with FCO specifications regarding parameters, rule-setting, and notification requirements.

While the underlying investigation was already publicly known, the FCO's intention to exercise its profit skimming powers was not previously announced.

First use of profit skimming powers

In a notable first, the FCO, in addition to the cease and desist order, has exercised its reformed profit skimming (Vorteilsabschöpfung) power, ordering Amazon to disgorge approximately EUR59m to the German state. The amount may be increased at a later point in time because the FCO considers the infringement ongoing.

This remedy, laid down in Section 34 of the German Competition Act and fundamentally reformed in 2023, enables the FCO to reclaim the economic benefit an undertaking has derived from competition law infringements.

Under the reformed rules, the economic advantage can be established using a presumption rule, making it easier for the authority to quantify the gains. Critics have nonetheless claimed that the instrument will remain mostly useless, a claim that has now been challenged very directly by the enforcer.

Key observations

The decision carries several important implications.

1. A new enforcement tool in action

The profit skimming power provides German competition authorities with an additional remedy beyond traditional fines. Unlike fines, which are calculated based on deterrence principles, profit skimming focuses on removing the economic benefit of unlawful conduct.

In particular, the presumption of gains and the lowered evidentiary burden provide the FCO with a certain flexibility, which goes beyond claimants' power in civil law proceedings. It appears unlikely that the FCO will limit the application of this tool to digital platform cases, but this will obviously depend on whether the decision survives judicial scrutiny in case of an appeal.

2. Continued high scrutiny for platform operators

The decision underscores that the FCO is willing to enforce strict limits on how platform operators may influence the commercial behavior of third parties on their platforms.

The FCO expects that any mechanisms that restrict pricing autonomy must be transparent, predictable and limited to genuine exceptional circumstances. A justification based on the principles of consumer protection does not appears to be readily accepted by the enforcer.

3. Coordination with EU and other authorities

The FCO states that it coordinated closely with the European Commission, which is responsible for enforcing the Digital Markets Act, and with the German Federal Network Agency regarding transparency requirements under the Platform-to-Business Regulation.

Nonetheless, it is notable that the FCO continues its enforcement based on national law in light of increasing regulation of digital platforms based on EU law.

A trend towards profit disgorgement in Germany?

The FCO's decision is not the only legal challenge digital companies face in Germany in terms of profit disgorgement.

A consumer protection organization has recently launched a profit disgorgement claim against Amazon regarding the introduction of advertising into Prime Video. The claim was filed under Germany's newly introduced Consumer Rights Enforcement Act, which implements the Representative Actions Directive, and includes a claimed amount of EUR1.8 billion.