On May 18, 2021, the Federal Court of Justice
("FCJ") ruled that Booking.com's
"narrow" best price clause violates Article 101 (1) TFEU
(the cartel prohibition) as well. Thereby the FCJ overruled the
Higher Regional Court of Düsseldorf which held that
"narrow" best price clauses were not anti-competitive,
but an ancillary restraint necessary to carry out the –
otherwise neutral – platform contract entered into between
Booking.com and the participating hotels using the platform
("ancillary restraints doctrine").
"Narrow" best price clauses as restraints of
competition
Booking.com operated a clause, that prohibited participating
hotels from offering their rooms on their own website at lower
prices or other more favourable conditions than on Booking.com
("narrow" best price clause). However, Booking.com did
not restrict participating hotels from offering rooms at lower
prices on competing online booking portals or offline without
online advertisement (like it would
