Germany: Higher Regional Court of Düsseldorf contradicts the Federal Cartel Office and allows Internet portal booking.com to use "narrow" best price clauses
The Higher Regional Court of Düsseldorf contradicts the Federal Cartel Office and allows Internet portal booking.com to use "narrow" best price clauses.
On 4 June 2019, the Düsseldorf Higher Regional Court reversed the decision of the Federal Cartel Office (FCarO) of 22 December 2015 in the booking.com case. Booking.com may use "narrow" best price clauses. These are not restrictive of competition but ensure a fair and balanced exchange of services.
The booking platform booking.com, like other such platforms, used a clause in its general terms and conditions according to which hotels may not offer rooms on their own pages at a lower price than on booking.com. This ensured that customers have an incentive to book on the platform. Due to the prohibition by the FCarO, such clauses have not been used since February 2016.
However, the Higher Regional Court of Düsseldorf does not consider this practice to be restrictive of competition. Otherwise the hotels could lure the customers by better offers on their own web pages. But then the booking platform would not be entitled to commission.
Consequences and Reactions
The Federal Cartel Office expressed disappointment at the court's ruling and makes a decision on possible legal remedies dependent on the reasons for the ruling. The chairman of the German Hotel Association, Otto Lindner, expressed his incomprehension about the decision, as the hotels would now be at the mercy of the platforms. A statement of booking.com is not present so far.
The Düsseldorf Higher Regional Court thus differentiates between "wide" and "narrow" best price clauses. "Wide" best price clauses are those according to which hotels are obliged to always offer the most favourable conditions on the portal, i.e. to charge more expensive prices on their own website. This practice was prohibited by the Higher Regional Court in its decision about HRS in 2015.
The Senate has not admitted the appeal to the Federal Supreme Court here in the booking.com case. However, the Federal Cartel Office still has the option of lodging a non-admission complaint. This means that the question of the legal admissibility of "narrow" best price clauses has not yet been clarified by the Supreme Court.
Press release of the OLG Düsseldorf regarding booking.com [the decision is not yet available]