CONTRIBUTION OF THE COMPETITION COUNCIL OF LUXEMBOURG 357 financial incentives, implemented by Luxair, an air navigation undertaking with several travel agents established in Luxembourg, based on commercial contracts. These bonuses may constitute an abuse of a dominant position, provided that the undertaking that grants them is in a dominant position, and that these bonuses may have an incentive or loyalty effect for business partners so that Luxair’s competitors risk being squeezed out of the market. Following a statement of objections issued against Luxair, which was able to position itself in relation to these objections both in writing and during a hearing, the Council decided to close the case. The Council considered that Luxair’s dominant position could not be demonstrated either directly on the market for travel agency services or through a link with the passenger air transport market. 4. THE COMPETITION COUNCIL’S CONTRIBUTION TO THE ONLINE HOTEL BOOKING SECTOR ISSUES In the online hotel booking sector, Most Favored Nation clauses (MFN)9 had attracted scrutiny from National Competition Authorities (NCAs) across the EU between 2010 and 2015. The European Commission declined to investigate, leading to diverging approaches and results across the EU Member States. In 2013, the Bundeskartellamt (BKT) considered that the clauses applied by the Online Travel Agent HRS were infringing competition law. The Düsseldorf Higher Regional Court confirmed this decision on 9 January 2015. Moreover, the BKT prohibited narrow MFN clauses and wide MFN clauses applied by Booking.com in Germany, in 2015. For this decision, the Düsseldorf Higher Regional Court adopted a different approach for narrow MFN clauses, not characterising them as a restriction of competition. In contrast to the BKT’s approach, in mid-2015, the French, Italian and Swedish NCAs accepted commitments from Booking.com to narrow the scope of its wide MFN clauses. As a result of these parallel investigations, Booking.com changed its clauses around most EU Member States in July 2015. 9 These clauses are defined into two categories: – MFN clauses imposed by a platform requiring its business users not to offer lower prices or better terms on their own website than they do on the platform, narrow MFN clauses; and – MFN clauses imposed by a platform requiring its business users not to offer lower prices or better terms elsewhere, on their own website, on other competing platforms or any other online or offline sale channels, wide MFN clauses.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==