516 COMPETITION LAW IN TOURISM platforms. From a theoretical standpoint, we build upon and contribute to the recent works of Edelman & Wright (2015), Boik & Corts (2016), Johnson (2017) and Wang & Wright (2016). Likewise, in the European Commission, this type of clause is analysed in a subsidiary way to the adoption of other potentially harmful practices, such as resale pricing, according to that authority’s vertical restraint guide. The two principal pieces of consumer legislation are the Unfair Contract Terms Directive, which serves to regulate unfair standard terms in contracts when these are to the detriment of consumers, and the Unfair Commercial Practices Directive, which allows one to challenge the conduct of sellers who distort the consumer’s economic behaviour (e.g. misleading practices)4. While the divergences among the Member States might tempt the legislator to act, some might argue that these differences, if studied for their impact, could allow for better learning of the optimal regulatory approach. This might, in due course, facilitate EU-wide legislation, but it can equally facilitate the convergence across national legislatures. The Member States are disposed to regulate these new realities either to guarantee what they believe to be fair conditions in the market or to ensure the safeguard for other non-economic interests (Monti, 2018). Baker and Morton (2018) consider that there are two types of impact: one exclusionary and the other collusive5. The exclusionary impact stems from the impossibility that a more efficient OTA, which covers a lower commission rate than Booking, Takeoff or Expedia (e.g. 10% commission versus 15% of companies surveyed), could pass on this efficiency to the consumer charging a lower price. Due to the parity requirement, even charging a lower commission, the consumer price must be at least equal to that offered by the OTAs that impose the clause on hotels. As a result, the most efficient companies end up unable to differentiate themselves from dominant companies to gain market share. 4 Consumer Rights Directive [2011] OJ L306/64, Recital 65; Directive 93/16 EEC on Unfair Terms in Consumer Contracts [1993] OJ L95/29, recital 7; Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market [2005] OJ L149/22, recital 4. 5 BAKER, Jonathan B. & MORTON, Fiona M. Scott. Antitrust Enforcement Against Platform MFNs. Yale Law Journal, 2018.
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