Jurisdiction(s):
United Kingdom

Booking.com (C-264/23): CJEU finds wide and narrow price parity (MFN) clauses not ancillary; VBER, Article 101(3) and market definition guidance for online hotel platforms

Published on: 06 November 2024

Published by a LexisNexis Competition expert

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Article summary

Booking.com and Booking.com (Deutschland) Case C-264/23 What are the practical implications of this case?

The Court of Justice judgment carries particular substantive weight for online platforms. It provides unambiguous direction that, in the Court’s assessment, neither wide nor narrow parity clauses fulfil the criteria of an ancillary restraint, as they are not objectively required for carrying out the principal operation. Consequently, such provisions cannot be treated as collateral to the core service. In this matter, the principal operation is the supply of online hotel reservation services by platforms such as Booking.com. Although, in specific instances and depending on the precise business model, advancing an ancillary-restraint justification may not be entirely out of the question, the obstacles to doing so are exceptionally high, and the evidential burden is significant. For Booking.com itself, the ruling has limited forward-looking effect (though it could be pertinent to damages claims) because the Commission designated it a gatekeeper under the Digital Markets Act (DMA) in May 2024, which, under Article 5(3), bars the use of both wide and narrow parity clauses. For other companies, particularly smaller firms or new entrants, however, the decision remains practically important...

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