[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.
This post is authored by Eline Chivot, (Senior Policy Analyst, Center for Data Innovation, Information Technology and Innovation Foundation.).]
As the COVID-19 outbreak led to the shutdown of many stores, e-commerce and brick-and-mortar shops have been stepping up efforts to facilitate online deliveries while ensuring their workers’ safety. Without online retail, lockdown conditions would have been less tolerable, and confinement measures less sustainable. Yet a recent French court’s ruling on Amazon seems to be a justification for making life more difficult for some of these businesses and more inconvenient for people by limiting consumer choice. But in a context that calls for as much support to economic activity and consumer welfare as possible, that makes little sense. In fact, the court’s decision is symptomatic of how countries use industrial policy to treat certain companies with double standards.
On April 24, Amazon lost its appeal of a French court order requiring the platform to stop delivering “non-essential items” until it evaluates workers’ risk of coronavirus exposure in its six French warehouses. The online retailer is now facing penalties of about 100,000 euros (about $110,000) per delivery, and was given 48 hours to reduce its warehouse activities and operations.
But the complexity of logistics would make it difficult to adjust and limit deliveries to just “essential items.” Given the novelty of the situation, there were no official, precise, and pre-determined lists in place, nor was there clarity about who gets to decide, nor was there a common understanding of what customers would consider essential services or goods. As a result, Amazon temporarily closed its six French distribution centers, and is now shipping to its French customers from its warehouses in other European countries. If France wants to apply such measure for worker safety in this time of crisis, that’s clearly its right. But the requirement should apply to all online retailers equally, not just to the American company Amazon.
The court’s decision was made on the grounds that Amazon had not implemented sufficient safety measures for its workers. The turnaround last week of trade unions (who had initiated the complaints against Amazon and called for the shutdown of its facilities) and their proposition to “gradually” resume operations speak volume. Like many other companies, Amazon had invested in additional safety measures for its employees during the crisis, distributed masks and gloves to its workers, had taken their temperatures before their shifts, had built testing capacity, and proactively decided to prioritize the delivery of essential goods. Like many other companies, Amazon had to rapidly cope with unprecedented circumstances it wasn’t prepared to handle, while having to juggle a surge in online orders during lockdowns and make do with some governments’ unclear guidance regarding safety measures.
But France has long prioritized worker welfare over broad economic welfare—which includes worker welfare, but also consumer welfare and economic growth. Yet, in this case, that prioritization seems to only apply to Amazon. French retailers like Fnac, Cdiscount, Spartoo, and La Redoute did not face the same degree of judicial scrutiny despite similar complaints about distribution centers. Nor did they have to restrict their deliveries to “essential goods.” But in France, it seems, what is good for French geese isn’t good for U.S. ganders. In fact, the real issue appears to be the French application of industrial policy. According to a union representative of Fnac, this is about “preventing Amazon from gaining market share over French retailers during lockdown,” so that the latter can reap the benefits. Using the crisis as an excuse to restructure the French retail sector is certainly one creative application of industrial policy.
Moreover, by applying these restrictions (either just to Amazon or across all retailers who engage in e-commerce), the French government is deepening the economic crisis. The restrictions it has imposed on Amazon are likely to accentuate the losses many French small- and medium-sized companies are already facing because of the COVID-19 crisis, while also having longer-term negative consequences for its logistics network in France. Many such firms rely on Amazon’s platform to sell, ship, and develop their business, and now have to turn to more expensive delivery services. In addition, the reduction in activity by its distribution centers could force Amazon to furlough many of its 9,300 French workers.
According to the unions, Amazon’s activity is judged “nonessential to the life of the country.” Never mind that Amazon partners with French retailers like Casino and is rescuing brands like Deliveroo during the crisis. In addition, online companies like Amazon, HelloFresh and Instacart hired more workers to manage growing demands during the crisis, while others had to furlough or layoff their staff. Beyond, French brands will need economically robust allies like Amazon to compete with Chinese state-backed giants like Alibaba that are expanding their footprint in European markets, and that have come under fire for dubious workplace practices.
Finally, the French court’s decision is an inconvenience to the 22.2 million people in France who order via Amazon, depend on efficient home deliveries to cope with strict confinement measures, and are now being told what is essential or not. With Amazon relying on other European warehouses for deliveries and being forced to limit them to items such as IT products, health and nutrition items, food, and pet food, consumers will be faced with delayed deliveries and reduced access to product variety. The court’s decision also hurts many French merchants who use Amazon for warehousing and fulfillment, as they are effectively locked out of accessing their stock.
Non-discrimination is, or least should be, a core principle of rule-of-law nations. It appears that, at least in this case, France does not think it should apply to non-French firms.