Higher Regional Court, decision of 9 January 2015, file number
VI-Kart. 1/14 (V))
The so-called "best price clauses" used in general
terms and conditions or in individually negotiated contracts
between the hotel booking portal HRS-Hotel Reservation Service
Robert Ragge GmbH ("HRS") and its German contract hotels
infringe competition law. By a decision of 20 December 2013, the
German Federal Cartel Office prohibited the use of such clauses by
HRS (Case B9-66/10). The appeal against this decision lodged with
the Higher Regional Court of Düsseldorf was not successful (9
January 2015, VI-Kart. 1/14 (V)).
Under the best price clauses, a contract hotel is obliged to
always offer the cheapest prices on the booking portal of HRS.
Moreover, the contract hotel may not make offers elsewhere that are
better than those offered via HRS in terms of the availability of
rooms or regarding the conditions for accepting or cancelling
The Court has taken the view that the best price clauses
resulted in a restriction of competition within the meaning of
Section 1 of the German Act against Restraints of Competition and
Article 101(1) TFEU. The hotels were limited in their commercial
freedom because the clauses did not allow them to freely set prices
or determine the booking and cancellation policies vis-à-vis
their customers or other hotel portals. As a consequence,
competition between hotel portals, on the one hand, and competition
in the market for hotel rooms, on the other, was adversely
affected. In both cases, the restrictions were significant and
could not be justified.
HRS has not appealed the judgment. The Federal Cartel Office is
currently examining the best price clauses of other hotel booking
portals (expedia.de and booking.com); in addition, the competition
authorities in other European countries (e.g., in Sweden, France
and Italy) are investigating this area.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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