RESERVEZ EN LIGNE Location de vélos


A Competition Law Assessment of Platform Most-Favoured-Customer Clauses

As already mentioned, the Oberlandesgericht Düsseldorf took a different approach to the narrow most-favoured-nation clause than that of the European competition authorities in its approach to the narrow most-favoured-nation clause by examining the clauses in the light of the doctrine of the ancillary agreement instead of Article 101, paragraph 3. This approach has not yet been properly tested by the European competition authorities. In its decision against the most-favoured-nation clause applied by HRS, the German ANC briefly stated that “most-favoured-nation clauses are not ancillary agreements necessary to safeguard the main purpose of a contract that does not infringe competition law. The clauses are therefore not excluded from the scope of the prohibition of anti-competitive agreements”[47], but have also not taken account of the doctrine. While it may seem that MFCs benefit consumers because prices are lowered, views have changed in recent years (since about 2012). The authorities are increasingly arguing that such clauses prevent the supply of lower prices elsewhere and make it much more difficult for competitive offers to enter the market, as they prevent new entrants from offering products at lower prices. It is therefore in breach of competition. [6] [7] [8] As explained above, several NCAs have found in online hotel booking investigations that most-favoured-nation clauses do not restrict competition. However, these NCAs have recognised the efficiency benefits associated with close most-favoured-nation treatment and their decisions leave the impression that the decision to accept commitments was motivated by efficiency considerations. For example, the Swedish NCA noted that OTAs can attract guests that hotels themselves struggle to reach and “offer consumers a search and comparison function that individual hotels cannot offer.” [30] The Swedish National Competition Authority noted that this contributed to “market price transparency and increased competition between hotels”[31] and that these efficiency gains would be undermined without the close most-favoured-nation treatment of parasitism. [32] The French and Italian NCAs also acknowledged that OTAs for hotel bookings lead to significant efficiency gains, which would be protected by the narrow obligations of the most-favoured nation. [33] 14 UK Competition and Markets Authority, Market Study on Digital Comparison Tools, “Document E: Competitive Landscape and Competition Efficiency” of 26 September 2017, paragraphs 3.34-37. However, in June 2019, the Higher Regional Court of Düsseldorf annulled the decision of the German NCAs regarding close most-favoured-nation treatment and found it compatible with competition law.

It should be noted, however, that it has approached its analysis from the perspective of the doctrine of ancillary agreements, unlike Article 101(3), the effects of which are discussed below. In most cases, these anti-competitive effects are unlikely. In fact, the opposite is true: an MFC clause is often a strong source of price competition. Its most obvious effect is to limit the possibility of price discrimination against its beneficiary, although it should be noted that the effects of price discrimination on welfare are notoriously complicated. An MFC can also ensure that all buyers benefit from efficiency gains common in certain industries such as manufacturing parts from year to year, which is especially useful when there is an information asymmetry between the buyer and the seller. Although NCAs have largely treated narrow models of the most favoured nations positively based on the associated efficiency gains, these potential concerns have been examined: the potential of narrow models of the most favoured countries to replicate the effects of general most-favoured-nation treatment and restrictions of competition through the direct channel. 32 ibid., paragraph 30: `Assessment by the competition authority supported by an analysis … believes that vertical price parity significantly reduces the risk of hotels switching from investments free rides. This, in turn, allows to receive remuneration for its research and comparison services, so that the services continue to be offered in the market for the benefit of consumers. In its CSD market study, the UK`s NCA reiterated its assessment that general most-favoured-nation treatment is not necessary to provide consumers with potential benefits beyond narrow most-favoured-nation clauses. [45] Other authorities have also found that the widely used most-favoured-nation clause does not meet the requirements of Article 101(3).

[46] 66 Law on freedom of prices for accommodation establishments in contracts with operators of online booking platforms, adopted on 19 July 2018. . .