502 COMPETITION LAW IN TOURISM than on its own online channel, but allows it to do so i) on platforms of other OTAs, ii) in their off-line channels (if not announced in the online channels), and iii) on the online restricted to customers as the regular ones. Since 2010, the OTAs’ use of parity clauses has been investigated and monitored by several contries’ antitrust agencies, with emphasis on two versants of understanding, one from the German agency, Bundeskartellamt, the other, in cooperation with the European Commission, of the Italian, Sweden and France authorities. The first, in December 20138, concluded that wide parity clauses, then used by one of Germany’s three largest OTAs, HRS (Hotel Reservation Service Robert Ragge GmbH), restrict competition under European and German legislation and ordered its withdrawal from all contracts, then initiating investigations against Expedia and Booking, for the use of the same clauses. In December 2015, Booking was prohibited from using any parity clause, including the ones of restricted parity. Furthermore, in a decision concerning HRS, it was understood that there was insufficient evidence of efficiency gains arising from the use of any type of parity clause by OTA, which were preventing hotels from freely establishing their prices, albeit only on their own website, which would discourage them from offering rooms in an OTA, at a price lower than that practiced, which could cause this channel’s “cannibalisation”, making it difficult for new companies to enter the market, with differentiated price strategies, an appreciable restriction, since Booking holds approximately 50% of this market. It further understood that the conditions for framing Booking’s conduct in the exception rule for vertical restraints, at wit: i) to contribute to improving the distribution of goods or the promotion of technical or economic progress; ii) to assure consumers a reasonable share of the gain obtained; iii) to be indispensable; and iv) to not exclude a substantial part of the competition in the affected market. (Article 101(3) TFEU). Regarding the first condition, it was understood that there were no efficiency gains, and if there were any, it had not been demonstrated: i) a relevant hitch- -hiking effect that justified the clauses, ii) reasonable consumers’ participation in potential gains, or iii) indispensability (for identifying other alternative remuneration models as efficient as the one used and that would avoid the alleged hitch-hiking effect). 8 Source: https://www.bundeskartellamt.de/SharedDocs/Entscheidung/EN/Entscheidungen/Kartellverbot/ B9-121-13.pdf?__blob=publicationFile&v=2.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==