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 bookings.
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.
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