D: Inadmissibility of Booking.com's "narrow best price" clause

Sept 1, 2021 Benn-Ibler Rechtsanwälte

Booking.com's so-called "narrow best price clause" is not compatible with antitrust law. In future, partner hotels may no longer be prohibited from offering rooms at lower prices on their own websites. This clause restricts competition for offering hotel rooms unduly; at the same time, the platform does not depend on this.

The portal "booking.com" enables hotel customers to compare existing offers and book their desired room directly. For its service as an intermediary, booking.com receives a performance-based commission from the respective hotel. In July 2015, the portal introduced a "narrow best price clause" in its general terms and conditions, which allows cheaper prices on other online portals or, if there is no online advertising, also "offline", but prevents hotels from offering their rooms at better conditions on their own websites. The use of the clause was prohibited by the Federal Cartel Office on 01.02.2016 and has not been used since. On the portal's appeal, however, the Higher Regional Court (OLG) of Düsseldorf overturned the ban.

The German Federal Supreme Court (Bundesgerichtshof, BGH) now takes the opposite view. It considers the clause to be a violation of the ban on cartels in Article 101 (1) of the Treaty on the Functioning of the European Union (TFEU). This is because the best-price clause, as an ancillary agreement to the platform contract, can only be exempted from the prohibition insofar as it is objectively necessary for the performance of the contract. According to the BGH, however, the best price clause was not objectively necessary for the performance of the agency contract. After abolition, "booking.com" had even been able to increase its market position by 30%. The risk of ''free riders'' using the platform merely to find the cheapest offer did not exist.

In particular, the clause deprives the hotels of the immediate possibility of including the commission in the room price, which is not incurred in the case of direct sales, and thus of attracting customers. At the same time, there is also a restriction of competition vis-à-vis other hotels, as it is not possible to make better offers to their current customers in their own online business. This makes it much more difficult to market remaining capacities. Last-minute offers are of particular economic importance.

BGH, KVR 54/20 (18.05.2021)