On behalf of the team

On 18 May 2021, the German Federal Court of Justice (Bundesgerichtshof) ruled on the ‘best price clause’ that uses in agreements with hotels.[1] This clause requires hotels not to rent hotel rooms via other channels for a lower price than indicated on’s website. In a 2015 decision, the German competition authority announced that this provision was contrary to Article 101(1) TFEU. However, on appeal by, the Higher Regional Court (Oberlandesgericht) in Düsseldorf ruled that the provision in question was permissible because it was a necessary ancillary agreement to the agency agreements with hotel companies, and therefore did not fall under the prohibition on cartels. In that respect, particular attention was given to the ‘free rider’ problem that had been raised by The problem is that consumers use to obtain information, but then reserve directly at the hotel, meaning that although bears the marketing costs it does not generate any sales. The Bundesgerichtshof held otherwise. It did not consider the best price clause to be objectively necessary for the agreement between and its hotels, as can also sell the rooms without this provision. It was also clear that had been able to strengthen its market position in Germany after it stopped using the best price clause. There was no other exemption that could invoke.

[1]              Bundesgerichtshof 18 May 2021, no. 099/2021.