EU COMPETITION LAW AND POLICY IN THE TOURISM SECTOR 57 The recent proliferation of enforcement against MFNs, between OTAs and hotels in the EU Member States, led to mixed results. The French, Italian and Swedish investigations in the practices of Booking.com was coordinated by the Commission and resulted in the EU-wide commitments, terminating wide MFNs but keeping in place the narrow ones190. At the same time, the German Bundeskartellamt prohibited both wide and narrow MFN clauses, considering that they have, de facto, the effect of a resale price maintenance, by preventing hotels from setting their own prices191. Further, the Czech authority has recently fined Booking.com for illegal vertical agreements192. Such differences subject the undertakings concerned to varied legal standards and complicate the compliance efforts. To add to the complexity of the matter, after the French competition authority accepted the commitments, the French legislator introduced rules for online platforms consisting in essence of banning parity clauses193, further altering the regulatory landscape for the actors involved. In the aftermath of these national enforcement efforts against parity clauses, the Commission believes that those investigations “have generally improved conditions for competition and led to more choice for consumers”194. In any case, as the law currently stands, it is recognised that the parity clauses demonstrate both pro- and anti-competitive characteristics, mandating a case- -by-case assessment195. Interestingly, during its investigation of the MFN clauses, the French competition authority has identified other possible problematic clauses in the contracts between the hotels and the platforms in the light of competition law196. In that regard, the French competition authority raised concerns towards the implementation of excessive commission rates, the appropriation of hotels’ clients, clauses permitting suspension or unilateral termination of the contract 190 European Commission – Daily News 21 April 2015, Antitrust: Swedish, French and Italian competition authorities obtain commitments in online hotel booking sector, available at: https://europa.eu/rapid/press-release_ MEX-15-4819_en.htm. 191 Bundeskartellamt, Case B9-66/10, HRS-Hotel Reservation Service, 20 December 2013, para. 185; see also: Bundeskartellamt, Case B 9-121/13, Booking.com, 23 December 2015. 192 MLEX, Booking.com fined for illegal vertical agreement by Czech competition watchdog, 11.11.2019, available at: https://www.mlex.com/GlobalAntitrust/DetailView.aspx?cid=1141802&siteid=190&rdir=1. 193 Article 133 of Law No. 2015-990 of 6 August 2015 (Loi No. 2015-990 du 6 août 2015 pour la croissance, l’activité et l’égalité des chances économiques). 194 EC Press Release: Antitrust: Commission publishes report on online hotel booking, https://europa.eu/rapid/ press-release_MEX-17-896_en.htm. 195 Final report on the E-commerce Sector Inquiry, supra note 179, p. 180. See also: Crémer Report, supra note 71, p. 57. 196 Autorité de la concurrence, Decision 15-D-06, Booking.com, 21 April 2015.
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