EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 55 Commission’s Vertical Guidelines178 provide further guidance on the matter. Some examples of vertical agreements or concerted practices in the tourism industry relate to exclusivity offline and online, resale price restrictions in various forms and so on. Exclusivity agreements may be used by large enterprises to hinder the access of smaller, independent tour operators to holiday destinations. In that regard, non- -parties to the agreement are not able to offer or market these holiday resorts or destinations. On the downstream level, exclusive agreements between tour operators and travel agents can be concluded. As a result, the latter cannot offer other products than those of the principal-tour operator. As trading becomes exclusive, a foreclosure effect on the relevant market may occur. In the digital context, “exclusivity clauses” comprise “clauses whereby either marketplaces or price comparison tools are restricted from entering into contractual relationships with other retailers (selling the same products) than the contracting one or whereby retailers are restricted from selling on other marketplaces or listing their products on other price comparison tools”179. The Commission concluded that such exclusivity clauses between marketplaces and retailers selling on the marketplace are not very prevalent180. Contrarily, parity clauses (also referred to as most-favoured-nation or “MFN”) are more present in the EU, typically obliging the retailer to sell or list its product or service on an online marketplace or a price comparison tool, at the lowest price and/or on the best conditions, offered either on retailer’s own website (“narrow” MFN clauses) or on other marketplaces/price comparison tools or in every possible sales channel (“wide” MFN clauses)181. In the context of hotels, a “wide” parity clause requires a hotel contracting with an OTA to offer the OTA the lowest room prices and best room availability comparing to all the other sales channels, including other platforms. In contrast, a “narrow” parity clause prohibits the hotel from displaying on its website prices lower than the prices displayed on the OTA’s portal, without restricting the hotel’s right to offer rooms at a lower price on other booking portals. 178 Commission notice – Guidelines on Vertical Restraints, Official Journal C 130, 19.05.2010, p. 1. 179 Commission Staff Working Document Accompanying the document Report from the Commission to the Council and the European Parliament Final report on the E-commerce Sector Inquiry, Brussels, 10.05.2017 SWD(2017) 154 final, https://ec.europa.eu/competition/antitrust/sector_inquiry_swd_en.pdf, p. 177. 180 Ibid. p. 178. 181 Final report on the E-commerce Sector Inquiry, supra note 179, p. 177.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==