The Oberlandesgericht (OLG, Higher Regional Court) of Düsseldorf has determined that the “guaranteed best-price” clauses contractually agreed between the online portal HRS-Hotel Reservation Service Robert Ragge GmbH (“HRS”) Portal and the respective hotels constitute a violation of German anti-cartel law.
The court held that the best-price clauses which the HRS portal used in its contractual agreements effectively restrained competition among the various operators of hotel reservation sites, and that this constituted a violation of Section 1 of the Gesetz gegen Wettbewerbsbeschränkungen (GWB, German Act Against Restraints of Competition). By using the best-price clause, the court reasoned, HRS was able to secure hotel room prices at least as low as those being offered elsewhere. Given that HRS was found to have a market share of over 30%, the court held that the best-price clause resulted in a significant restraint of competition. In the court’s opinion, this particular business practice did not fall under the exemption from the cartel ban granted under the applicable Block Exemption Regulation (Article 101 paragraph 3 of the Treaty on the Functioning of the European Union (TFEU) in conjunction with Articles 3 and 7 of the Vertikal-Gruppenfreistellungsverordnung (Vertikal- GVO, Block Exemption Regulation for Vertical Agreements), nor did it qualify as a permissible legal exemption pursuant to Article 101 paragraph 3 of the TFEU. The court has allowed the matter to be appealed on points of law to the Bundesgerichthof (BGH, German Federal Court of Justice).
Source: Ruling of the Oberlandesgericht (OLG, Higher Regional Court) of Düsseldorf dated January 9th, 2015, VI – Kart. 1/14 (V).