Price and Condition Parity Clauses in Contracts Between Hotel Booking Platforms and Hotels

Abstract

Price parity clauses on digital platforms, such as hotel booking platforms, have been the subject of divergent decisions under Art. 101 TFEU by courts and competition authorities in many EU Member States. These decisions have revealed significant differences between and even within single Member States with regard to the dogmatic treatment of price parity clauses, the factual assessment and the legal outcome. Some countries have even introduced special legislation with regard to price parity clauses. The Swedish Patent and Market Court of Appeals in May 2019 declared narrow price parity clauses to be consistent with Art. 101 TFEU. Only a few weeks later the German Düsseldorf Court of Appeals (Oberlandesgericht, OLG) overturned a decision by the German Competition Authority (Bundeskartellamt) and also held that narrow price parity clauses are valid. This case is on appeal to the German Supreme Court (Bundesgerichtshof). However, the judgments by the two courts of appeals are at odds with regard to their dogmatic approach to Art. 101 TFEU and to the factual findings. Against this background, the Swedish court of appeals’ judgment casts light on several aspects that might be of relevance for similar cases in other jurisdictions or that require clarification by a referral to the ECJ or by the lawmakers.