Germany
On behalf of the team
On 18 May 2021, the German Federal Court of Justice (Bundesgerichtshof) ruled on the ‘best price clause’ that Booking.com 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 Booking.com’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 Booking.com, 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 Booking.com. The problem is that consumers use Booking.com to obtain information, but then reserve directly at the hotel, meaning that although Booking.com 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 Booking.com and its hotels, as Booking.com can also sell the rooms without this provision. It was also clear that Booking.com had been able to strengthen its market position in Germany after it stopped using the best price clause. There was no other exemption that Booking.com could invoke.
