Marketplace platforms have become a key part of the infrastructure for online sales. For many businesses, an account on such a platform is the primary channel for reaching customers, including in cross-border trade between Poland and Germany. A sudden marketplace account suspension The termination of a professional salesperson’s contract, carried out without clear and verifiable grounds and without any real opportunity to defend themselves, is not merely a matter of the terms and conditions. Such action may be classified as a practice that restricts competition or as an act of unfair competition. From the perspective of the management board of a company engaged in cross-border sales, this means that account suspension must be considered not only in terms of a contractual dispute, but also as a legal event with significant competitive implications, potentially triggering both public-law (antitrust) and private-law (damages) regimes.
I. Account freeze and the EU prohibition on the abuse of a dominant position (Article 102 TFEU)
At European Union level, it is of fundamental importance that Article 102 of the Treaty on the Functioning of the European Union. This provision prohibits the abuse of a dominant position by one or more undertakings where their conduct is liable to affect trade between Member States and lead to a distortion of competition in the internal market. In practice, a dominant position refers to a situation in which a particular entity, such as a global sales platform, possesses such economic power that it can act to a significant extent independently of its competitors and trading partners. In the marketplace services sector, this applies to platforms with a significant market share that act as the de facto „gateway” to online sales in a given country or region.
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What is crucial, however, is not the mere existence of a dominant position, but its abuse. Abuse is objective in nature: it refers to conduct which, in a context where structural competition is already weakened, further hinders other undertakings from entering the market or remaining on it, through means other than normal substantive competition, understood as rivalry based on price, quality or innovation. Suspension of a seller’s account, which is heavily dependent on sales via that platform, may be regarded as an exclusionary practice. The seller loses access to the sales channel and, consequently, the actual ability to compete, even though no proportionate and transparent basis for such a drastic measure has been provided.
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In the context of an account being blocked on a marketplace platform, this means that a trader may rely on both Article 102 of the Treaty on the Functioning of the European Union and the national regulations corresponding to that provision, in order to request an investigation into whether the suspension constitutes an abuse of a dominant position by excluding the seller from the market or exploiting their dependence. If, in practice, the platform acts as infrastructure essential for conducting sales and there are no viable substitutes with comparable reach, denial of access through account blocking may be classified as a refusal to provide a key facility, assessed in accordance with the criteria established in the case-law of the Court of Justice.
II. Suspension of a marketplace account under Polish law – the Act on Competition and Consumer Protection and the Act on Combating Unfair Competition
Under Polish law, the Act of 16 February 2007 on the Protection of Competition and Consumers plays a fundamental role. Article 9 of that Act introduces a statutory prohibition on the abuse of a dominant position in the relevant market by one or more undertakings. This prohibition takes the form of a general clause, supplemented by an illustrative list of abusive practices and the sanction of nullity for legal acts constituting such abuse. The provision clearly distinguishes between holding a dominant position – which is not prohibited in itself – and the abuse of that position, which is strictly prohibited.
Examples of practices listed in Article 9 include, amongst others, the direct or indirect imposition of unfair prices and other terms of purchase or sale, the restriction of production, sales or technical progress to the detriment of trading partners or consumers, and the imposition, in similar contracts with third parties, of onerous or inconsistent terms, thereby placing those parties at a competitive disadvantage. Account suspension on the marketplace platform may be classified as a restriction on sales or a refusal to cooperate economically, which hinders the seller’s ability to participate in the market, or as discrimination, when the platform applies different standards to comparable entities, for example by treating independent sellers and affiliated sellers differently.
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Article 9(3) of the Act on Competition and Consumer Protection provides that legal acts constituting an abuse of a dominant position are void in whole or in part. This sanction arises by operation of law; it is a consequence of any legal act constituting an abuse and serves a preventive and restorative function. In practice, this means that a platform’s terms and conditions or specific contractual provisions which allow for the unjustified blocking of an account may be deemed invalid by a court. The seller then gains an additional argument in favour of unlocking an account and pursuing claims relating to the consequences of the blockade.
At the same time, the Act of 16 April 1993 on Combating Unfair Competition applies. This Act defines an act of unfair competition, amongst other things, as the unlawful obstruction of market access and actions contrary to good commercial practice which threaten or infringe the interests of another trader. A marketplace platform which, without sound justification, blocks a seller’s account and thereby deprives them of the opportunity to sell on a market which it has itself dominated may be regarded as an entity engaging in precisely such obstruction of market access. If, at the same time, it charges fees for the use of the account despite the block or passes on to the seller the costs associated with the platform’s flawed policy, this constitutes an element of unequal and unfair terms contrary to good commercial practice.
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An important addition is the Act of 21 April 2017 on claims for compensation for damage caused by infringements of competition law. This Act implements Directive 2014/104/EU and enables claims for damages arising from infringements of Articles 101 or 102 of the Treaty on the Functioning of the European Union and the corresponding national provisions, in particular Article 9 of the Act on Competition and Consumer Protection. In the event of an account being blocked, the seller may demonstrate not only the fact of a breach of the prohibition on the abuse of a dominant position or an act of unfair competition, but also the specific extent of the damage, including lost revenue during the period of the block, frozen funds, the account’s loss of position in rankings and ratings, and the costs of reorganising sales channels. Thus, the Polish system allows for the joinder of claims for an injunction against infringements, including claims for unblocking a marketplace account, with claims for damages that serve a fully compensatory function.
III. Suspension of a seller’s account in Germany – the GWB, the UWG and the case law of the German courts
In German law, two Acts are of fundamental importance: Act against Restrictions on Competition (GWB) and Law against Unfair Competition (UWG). The first of these, the Act against Restrictions on Competition, includes, amongst other things, a prohibition on the abuse of a dominant position and a prohibition on the abuse of a position of particular dependence in relation to economically dependent undertakings. The second, the Act against Unfair Competition, regulates breaches of fair competition practices and protects businesses from unfair market practices.
Under the Gesetz gegen Wettbewerbsbeschränkungen, large marketplace platforms are sometimes classified as entities holding a significant market position in relation to the sellers who use their infrastructure. If such a seller is in fact dependent on access to an account on the platform and has no comparable alternative sales channels, this relationship may be classified as a special dependency. Under such circumstances, the suspension of an account may be regarded as an abuse, particularly where it is applied selectively, without comparable criteria being applied to all market participants.
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The Unfair Competition Act protects businesses from unfair practices, including the aggressive obstruction of competitors’ activities. The suspension of an account on a platform, which prevents a seller from trading on the German market, may be classified as an obstruction of a competitor’s business if there are no transparent criteria, no explanatory procedure and the measure applied is not proportionate.
The case law of German courts is of significant importance, in particular that of the courts in Munich and other centres, which have already dealt with disputes concerning the blocking of accounts on marketplace platforms. In these cases, the courts analysed, amongst other things, whether the platform applied uniform rules to all sellers, whether its own group companies were not given preferential treatment, and whether the account suspension was a necessary and proportionate measure in response to the breaches committed by the seller. Where it transpired that sellers with capital ties were not subject to similar sanctions, whilst independent sellers were treated more harshly, the courts recognised an element of discrimination against competitors.
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In German practice, claims relating to the freezing of an account under the Gesetz gegen Wettbewerbsbeschränkungen and the Gesetz gegen den unlauteren Wettbewerb are often classified as tortious claims within the meaning of Regulation (EU) (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition of judgments. This paves the way for the application of specific grounds of jurisdiction for tortious acts, in particular Article 7(2) of the Regulation, which provides for the jurisdiction of the court of the place where the event giving rise to the damage occurred or where the damage occurred. For a seller whose account suspension primarily affects sales to Germany, this means the possibility of bringing a claim before a German court, which will assess the case from the perspective of the competition and unfair competition law in force in that country.
IV. Where should a marketplace platform be sued? Choosing the forum for a dispute in cross-border business operations
A business operating across borders via marketplace platforms is usually faced with the choice of where to pursue a dispute relating to an account suspension and on what legal basis to base their claims. Claims of a typically contractual nature, relating to the provision of digital services and compliance with the terms and conditions, are most often brought before the court of the country where the service provider is established or before the court having jurisdiction in accordance with the provisions of the terms and conditions. Disputes of this kind focus on the interpretation of the contract and the terms and conditions, rather than on assessing the impact of the suspension on competition in the market.
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Claims arising from breaches of competition law and acts of unfair competition constitute a separate category. Regulation No 1215/2012 allows such cases to be brought before the courts of the country in which the damage occurred. If the account freeze primarily affects sales to the German market, the natural forum for claims relating to antitrust law will be a German court. If the greatest impact is felt in Poland, and the account was crucial for domestic sales, a Polish court may have jurisdiction.
The decision on which forum to choose should take several factors into account: the actual place where the damage occurred, the sales structure and the share of transactions in individual markets, the relevant country’s case law on matters concerning marketplace platforms, the costs and duration of proceedings, and the scope for involving local competition authorities. Often, the optimal strategy involves a combination of several actions: lodging a complaint with the President of the Office of Competition and Consumer Protection or with the Bundeskartellamt, thoroughly documenting the harm suffered; and bringing legal proceedings before the court offering the best prospects for the swift preservation of claims – including the temporary unfreezing of an account – and for the effective recovery of damages.
If you are facing similar dilemmas, or if the account suspension has deprived you of your expected revenue and is preventing you from continuing your business operations in a viable manner, the International Law Practice will advise you on the most realistic and effective methods of having your account unblocked in a dispute against dominant players in the e-commerce market.
