PARITY CLAUSES AND THE EUROPEAN COMPETITION LAW IN TOURISM 523 would undermine investment and efficiency downstream – as the PCW will not see a return on its investment. During Summer 2015, the French Parliament voted to prohibit any form of price parity (or control by the platforms) for hotel room bookings. They were soon followed by their Austrian (January 2016) and Italian (August 2017) colleagues. Earlier, in September 2014, the UK Competition and Markets Authority (CMA) had ended its investigation on private motor insurance, concluding that wide price parity clauses imposed by PCWs were likely to harm consumers10 (although the CMA did not identify any antitrust violation) and ordering a ban on such clauses that apply across the board, though allowing narrow price parity. This practice guarantees a PCW not be undercut by a supplier’s direct distribution channel. Price parity clauses were considered, about five years ago, during the investigations against Apple and leading publishers in Europe and the US, but the focus was on explicit anticompetitive agreements between Apple and six large publishers11. In May 2017, the European Commission accepted commitments from Amazon to abandon price parity clauses. During this investigation, started in 2015, “the Commission considered that such clauses could make it more difficult for other e-book platforms to compete with Amazon by reducing publishers’ and competitors’ ability and incentives to develop new and innovative e-books and alternative distribution services” (European Commission Press Release, 4 May 2017)12. Some agencies or Governments chose to ban all kinds of price parity clauses (Germany, France, Austria, Italy), while others only required a switch from wide to narrow price parity (other EU countries, Switzerland, Australia) – they all relied on a relatively similar theory of harm. With competing platforms, wide price parity clauses remain harmful for consumers, but they may benefit from narrow price parity clauses. In the real world, different intermediaries are not the same; if we relax the assumption that the intermediary platforms are identical except for their relative sizes, a MFN 10 See the CMA’s final report and notice of order on the Private motor insurance market investigation respectively published on 24 September 2014 and 18 March 2015, both available in https://www.gov.uk/cma- -cases/private-motor-insurance-market-investigation. 11 See the European Commission’s decisions in Case COMP/39847/E-Books (2012, 2013) and the United States v. Apple Inc., 952 F. Supp. 2d 638, 15 647(S.D.N.Y. 2013). 12 See the European Commission’s decision in Case COMP/40153/E-Books MFNs and related matters (4 May 2017).
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