Booking in the sights of the ECJ - ECJ comments on so -called "best price clauses"
The ECJ decided on September 19, 2024 (case C 264/23) on so -called "best price clauses". Accordingly, both wide and close best price clauses are subject to the cartel ban and are ineffective.
1. What was it about?
Internet booking portals, such as booking for hotel bookings, have regularly used so -called best price clauses in the past. Best price clauses prohibit the hotel advertising on the portal
In their "tight" variant ("tight best price clause"), his rooms on their own hotel homepage and
In their "wide" variant ("wide best price clause"), his rooms neither on their own homepage nor on other third -party platforms
to offer at a cheaper price than on the booking portal (e.g. booking).
The usual business models of the booking portals provide for a commission from the hotel to the portal for every successful mediation. This commission is naturally priced in the room price on the comparison portal, so that the bookers indirectly bear this commission.
The ECJ now had to decide whether the best price clauses were subject to the cartel ban. At least this would not be the case if the best price clauses represent a mere ancillary agreement that is objectively necessary for the operation of the booking platform.
2. The decision of the ECJ
According to the statements of the ECJ, the best price clauses are not to be classified as a mere ancillary agreement. In order to be able to qualify a restriction as a side agreement, it must first be checked whether the main measure would be impossible without the restriction in question. Of course, the main measure must also not have a character -contrary character.
The ECJ notes that the main measure, the provision of online hotel booking services, generally has at least neutral effects on the competition. Platforms such as Booking offer the consumer a large overview and comparison via different accommodations. This is also an advantage for the hotels because they regularly gain greater visibility.
Therefore, the next step must be checked whether the provision of online hotel booking services would be impossible without best price clauses.
With regard to the wide best price clauses, the ECJ found that they were obviously not necessary for the provision of the booking services. This type of restriction is noticeably restricting competition because smaller platforms and newly entering platforms could be displaced from the market.
As seen above, the tight best price clauses do not go that far. Booking had stated that the regulations are necessary in particular to avoid so -called idlers. What is meant is that the customer becomes aware of the hotel via the booking portal, but prefers the individual hotel homepage for the actual booking. However, the ECJ sees no reason to classify the clauses as objectively: it is not clear that tight best price clauses are absolutely necessary to ensure the economic load capacity of the booking portals. So it is not enough for the main measure to be less profitable without such a clause.
3. Decision practice for side agreement in the past
In order to better understand the decision of the ECJ regarding the narrow best price clauses, a chronological look at the essential decisions on restrictions as necessary side agreements in the past is recommended:
A competition ban for the implementation of a company transmission for objectively was necessary very early. Otherwise there is a risk that the transaction could not be realized because the fears of the fact that the seller will re -incorporate his old customer base again immediately after the sale and thus significantly weakens the purchaser. The range of the ban must then be limited to the necessary (cf. ECJ v. 11.07.1985, "Remia" (Case 42/84; ECLI: EU: C: 1985: 327, paragraph 19f.))).
Likewise, restrictions in sales franchise contracts were considered permissible if they were essential for the functionality of the franchise system (cf. EuGH v. 28.01.1986, "Pronuptia de Paris" (Case 161/84; ECLI: EU: 19: 41, paragraph 16ff.))); For example, the prohibition of the activity for a competitive company if the franchisor transmits the necessary know-how to the franchisee.
A clause was also considered necessary, in which the licensee was prohibited from the licensor as the owner of certain variety rights. This is the only way to enable the licensor as a breeder the selection of licensed dealers and multipliers (cf. ECJ v. 19.04.1988, "Erauw-Jacquery" (right 27/87; ECLI: EU: C: 1988: 183, para. 11).
Finally, the ECJ considered restrictions on members of an agricultural cooperative or reference cooperative in the form of a ban on cooperation with other cooperatives directly competing. The clauses would ensure the functionality of the community in question, because only by restriction the capacity bundling required for the cooperative would be guaranteed. Nevertheless, it is a prerequisite that the determination of the cooperative statute would only be limited to the bare essentials (cf. ECJ v. 15.12.1994, DLG (Rs. C-250/92; ECLI: EU: C: C: C: 413) and from 12.12.1995, "Oude Luttikhuis" (Rina. C-399/93, ECLI: EU: C: 1995: 434, margin no. 20).
The decisions make it clear that a classification as an ancillary agreement is regularly considered if the implementation of the main measure is inevitably endangered without such a restriction.
4. What changes for the next vacation?
Nothing changes to book the next vacation. Booking has not been using best price clauses in Europe since this year because of the EU Digital Act (Digital Markets Act (DMA)). However, the judgment for the chances of success of any claims for damages by hotel operators should be interesting.
