350 COMPETITION LAW IN TOURISM ICA expressed its concern regarding the MFN clause. First of all, it could reduce competition by effectively limiting the freedom of partner hotels to offer their services at better prices and conditions than those guaranteed on the Parties’ platforms. Secondly, according to the Authority, this could discourage new OTAs from accessing the market, which is already highly concentrated: in fact, according to the Authority, Booking is the leading operator in the Italian market, followed by Expedia. Finally, ICA considered the situation described above as likely to also reduce competition regarding the commissions requested by online booking agencies from hotels. The already critical situation was further aggravated by the presence of the “Best Price Guarantees” clauses, which acted – together with the ranking system – as a way to verify and enforce that the MFN clause was observed. This way, the Parties developed a very effective sanction against “rebellious” accommodation facilities, essentially determining their demotion in the search results and, therefore, their disappearance (de facto) from the sector’s major websites. 3.11. ICA carried out two investigations in collaboration with other national antitrust authorities within the EU. In light of these concerns, ICA decided to open two investigations against Booking and Expedia pursuant to article 101 TFEU, in order to ascertain the possibly restrictive nature of the aforementioned clauses in the vertical relationships with the hotels. The Italian, French and Swedish Authorities coordinated their proceedings under the wing of the EU Commission, while the German Authority decided not to adhere to the shared solution – which entailed closing the proceedings and accepting the amendments to the contractual conditions adopted by the companies. On December 2015, the German Authority found that Booking. com’s MFN clauses violated EU and German antitrust law, even though their scope had been limited. The German Authority’decision thereby deviates from the approach taken by other national competition authorities regarding Booking’s commitments41. 41 S. Heinz; Online booking platforms and EU competition law in the wake of the German Bundeskartellamt’s Booking.com infringement decision; Journal of European Competition Law & Practice 2016, vol. 7, no. 8, pp. 530-536.
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