526 COMPETITION LAW IN TOURISM Perhaps a more general point that emerges from this discussion is the value of experimentalist governance. Recent developments in legislation throughout the world have made rate parity an important topic in the hospitality industry. As a matter of EU Law, the French, Italian and Austrian legislative initiatives can probably be challenged as restrictions on the provision of services. In Spain, despite efforts elsewhere, narrow parity clauses can still be enforced. The country never participated directly in active investigations on rate parity clauses. However, this wait-and-see approach benefitted the country, once parity clauses fell in countries like Italy, France (see above), Austria and Belgium: one piece of research analysis (PDF) determined that banning MFN clauses resulted in lower hotel room costs in Italy, France and Spain. In Austria, according to Section 1(4)(2) of the Unfair Commercial Practices Act, price parity clauses are unfair and thus void. In Italy, the so-called competition degree has also banned all forms of price-parity clauses21. In France the Loi Macron banned all forms of price parity clauses22, being one of the first countries to ban restrictive rate parity clauses back in 2015. In Germany, action has been taken by the German competition authority, which condemned the use of price-parity clauses in 2013 and 201523. Hotels can price their rooms as they want on whichever channel they prefer – except on their own channels, which must match the OTA price; this is “narrow parity”. In UK, since 1 September 2018, hotel booking platforms must drop any misleading practices, such as pressure selling, discount claims and hidden charges. This means that booking platforms can no longer give a false impression of scarcity, offer misleading discounts (i.e. comparing the price of a luxury suite with a standard room) or bury compulsory fees deep in the booking process. These platforms must also make it clear how hotels are ranked after a customer has entered their search requirement by, for example, telling people when results have been influenced by hotel commission payouts. In Sweden, Australia, New Zeland, Denmark United Kingdom, Poland and Greece, the antitrust authorities only allow the parity clauses in a restrict form (narrow clause). In mid-2018, a Swedish court ordered Booking to drop all parity clauses from its contracts, ruling such clauses in violation of EU competition 21 Article 50, Legge annuale per il mercato e la concorrenza, 04/08/2017 No. 124, G.U. 14/08/2017. 22 Loi No. 2015-990 du 6 aout 2015 pour la croissance, l’activite et l’egalite des chances economiques (which entered into force on 1 October 2016). 23 Augenhofer & Schwarzkopf ‘Bestpreisklauseln im Spannungsfeld europäischen Kartellrechts und mitgliedstaatlicher Lösungen NZKart 9/2017 pp. 446-452. BKartA, 20/12/2013 – B 9-66/10 – HRS. BKartA, 22/12/2015 – B 9-121/13 – Booking.com.
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