490 COMPETITION LAW IN TOURISM To become more comprehensible, the first mention shall be in the attachment. In this part, there is a list of business practices considered unfair under all circumstances. Moe specifically, number 32 on the list, indicating that in the request of an operator of a booking platform to an accommodation provider, the latter may not offer a lower price or any other more favourable terms than on the booking platform on other distribution channels, including its own website. Based on this, the parity clause linked to OTA has been considered an unfair practice since then. Additionally, §1a(4) mentions that the unfair practice indicated above is also an aggressive practice and all agreements based on online parity clause in hotel booking contracts is considered void. The third reference in paragraph §44(10) declares that the two indications above came into effect a month after publishing, and are equally applicable to contracts concluded before that date. PrAG was similarly amended in two parts. The first one is paragraph §7, which states that, if prices for accommodation are specified, §13(1) shall apply to these prices. The prices are set by the trader freely and may not be limited by price binding or best price clauses by booking platform operators. Such clauses in contracts between hotel operators and booking platform operators are absolutely void. Furthermore, the standard room price categories are available in the entrance area. The second allusion is §17(10), also mentioning that §7 came into effect a month after the publishing. However, the second and third sentences are also applicable to contracts concluded before that date. Together with the legislative development, the Austrian Constitutional Tribunal (VfGH)56 had the opportunity to analyse a case57 involving online parity clause and the hotel booking platform. Booking.com, as defendant argued mainly that it has the freedom to conduct a business58. On 29 September 2017, the VfGH decided to dismiss the plaintiff ’s application based on the aforementioned legislative aspects and also on the non-infringement of the already cited freedom to conduct a business, together with the non-violation of inviolability of property59, as well as equal treatment and non-discrimination60. 56 In German, Verfassungsgerichtshof. 57 G 44/2017, 29 September 2017. 58 Art. 16, Charter of Fundamental Rights of the European Union. 59 Using as legislative arguments Art. 17, European Convention of Human Rights; Art. 1.1, Additional Protocol to the European Convention on Human Rights; and Art. 5, Basic Act on General Rights of Citizens (StGG). 60 Using as legislative arguments: Art. 14, European Convention of Human Rights; Arts. 20 and 21, Charter of Fundamental Rights of the European Union; Art. 7, Federal Constitution – B-VG; and Art. 2 StGG.
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