Best price clauses in contracts or general terms and conditions of the online portal oblige participants, in particular hotels, tour operators or specialist retailers, to always offer services or products cheaper on the online platform than on other platforms or on their own website. Best-cost clauses are often used in combination with other most-favored-nation clauses, such as the obligation to offer the highest possible availability of products or services or to grant the best purchase or cancellation conditions.
The Federal Cartel Office had already criticized this broad best price clause in December 2013, back then against HRS, and banned its use. In January 2015, the Düsseldorf Higher Regional Court confirmed this prohibition order (decision of January 9, 2015 - Ref: VI Kart 1/14). Amazon also had to abandon its corresponding contractual provision in 2013.
Booking.com then used a so-called narrow best price clause. Afterwards, Booking.com allowed hotels to offer rooms at lower prices on other online portals. However, the price on the hotel's own website was still not allowed to be lower than the price on Booking.com. This narrow best price clause also did not stand up to antitrust scrutiny by the Cartel Office. The Federal Cartel Office also sees narrow best price clauses as a restriction on competition between existing booking portals and between the hotels themselves. In addition, market entry for new portals is made more difficult because there is no incentive for the hotels to switch to other platforms if the prices on your own website always have to be higher. There is also a lack of benefits for consumers.
Booking.com can lodge a complaint against the prohibition order with the Düsseldorf Higher Regional Court and apply for interim legal protection against its immediate enforceability.
However, hotels that used Booking.com should already get into position. If the Düsseldorf Higher Regional Court confirms the Federal Cartel Office's prohibition order, the hotels can demand compensation. To do this, they must demonstrate that they have lost profits due to the narrow best price clause.
The air is also getting thinner for hotel booking portals. The Federal Cartel Office announced that it will take part in a Europe-wide evaluation of the various options for antitrust measures.
