𝐄𝐂𝐉 𝐜𝐨𝐧𝐟𝐢𝐫𝐦𝐬: ‘𝐩𝐫𝐢𝐜𝐞 𝐩𝐚𝐫𝐢𝐭𝐲 𝐜𝐥𝐚𝐮𝐬𝐞𝐬’ 𝐦𝐚𝐲 𝐫𝐞𝐬𝐭𝐫𝐢𝐜𝐭 𝐜𝐨𝐦𝐩𝐞𝐭𝐢𝐭𝐢𝐨𝐧

Price parity clauses prohibit establishments from offering overnight stays at prices lower than those offered on 𝐁𝐨𝐨𝐤𝐢𝐧𝐠.𝐜𝐨𝐦. They may be ‘narrow parity’ clauses, applying to an establishment’s own sales channels or also encompass sales channels operated by platforms competing with 𝐁𝐨𝐨𝐤𝐢𝐧𝐠.𝐜𝐨𝐦 (‘wide parity’ clause).

The ECJ in today’s judgment ruled that 𝐁𝐨𝐨𝐤𝐢𝐧𝐠.𝐜𝐨𝐦’s price parity clauses, whether wide or narrow, are neither objectively necessary for its main operations, nor proportionate to their intended objectives. So, they cannot in principle be seen as an ‘ancillary restraint’.

The judgment clarifies the ‘ancillary restraints’ doctrine’, with the following 𝐤𝐞𝐲 𝐟𝐢𝐧𝐝𝐢𝐧𝐠𝐬:

• Online hotel reservation platforms like 𝐁𝐨𝐨𝐤𝐢𝐧𝐠.𝐜𝐨𝐦 have a neutral or even positive effect on competition. They increase consumers’ access to a wide range of offers, enhance comparability and make accommodations more visible. Therefore, they do not fall under the prohibition on anti-competitive agreements.

• Price parity clauses applied by these platforms however do not also escape this prohibition. For this to be the case, they must be ancillary to the main operations, which in principle they are not.

• Narrow or wide price parity clauses are not objectively necessary for the accomplishment of the main transaction of online hotel reservation platforms, nor are they proportionate to the objective pursued by it.

• Such clauses may have significant restrictive effects: they may limit competition between platforms and may exclude smaller or new platforms.

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