Leisure & Hotels

The TAR Lazio[1] upheld an ICA decision that rejected the request by B.M. S.r.l. (“B.M.”) to benefit from the effect of a final judgment in relation to the fine that the ICA had imposed on the said company in 2018 in the framework of a cartel decision.[2]

On July 15, 2019, the Commission published its annual report on competition policy, setting out the Commission’s main policy and legislative initiatives, and key decisions adopted in 2018.

The FCA published its 2018 annual report, which, this year, also provides an overview of the FCA’s policy and results over the last decade (see our article published in the April newsletter[1]).

On July 4, 2019, France and Germany, joined by Poland, issued a joint call to modernize European competition rules (“Joint Statement”).[1] This follows the publication in February 2019 of a Franco-German Manifesto for a European industrial policy to foster the creation of European champions.[2] The Joint Statement scales back some of the Manifesto’s far-reaching ideas.

On July 1, 2019, following a one-year public consultation with national courts and other stakeholders, the Commission published new guidelines to assist national judges in estimating the “passing-on” of overcharge in cartel damages claims.[1] The guidelines are the latest step in efforts to develop a forum for antitrust damages litigation throughout Europe, given that these actions are, at present, typically confined to a small number of national jurisdictions (the U.K., the Netherlands, and Germany).

On June 27, 2019, the German Federal Cartel Office (“FCO”) published its Annual Report 2018 as well as its biennial Activity Report 2017/2018.[1] Andreas Mundt, the President of the FCO, pointed out that the FCO has a clear digital agenda with a focus on the digital economy and the protection of consumer rights, which it will continue to pursue this year.

In June 2019, the CMA published its Merger Remedy Evaluations Report (the Report) – the latest in a series of case evaluations conducted to develop the CMA’s expertise, policy, and practice on merger remedies. The Report notes that its findings will be “used to inform the way in which the CMA approaches remedy design and implementation in subsequent cases.” The Report contains useful guidance for parties on the types of remedies that the CMA is prepared to accept or may require.

On June 11, 2019, Nustay, a Danish online booking agency, filed a complaint with the Commission against Expedia and Booking.com, alleging a breach of Articles 101 and 102 TFEU. The complaint centers on parity clauses in online hotel booking. In 2015, both Expedia and Booking.com agreed with the Danish Competition Authority to remove wide price-parity clauses from their contracts with hotels.[1] Nustay alleges that these two companies have de facto re-introduced these clauses through certain commercial practices.

On June 4, 2019, the Düsseldorf Court of Appeals (“DCA”) annulled the FCO’s 2015 decision prohibiting hotel booking platform operator Booking Holdings (“Booking.com”) from using narrow most favored nation (“MFN”) clauses.[1] The DCA’s decision aligns the German position with that of other European national competition authorities (“NCAs”). However, new causes of divergence—stemming from legislative interventions—are already emerging.

On June 2, 2019, the Inspection générale des finances and the Conseil général de l’économie published a report on the EU competition policy and industrial strategy (the “Report”). The Report was commissioned by the Ministry of Economy and Finance in December 2018 and aimed at assessing EU competition policy in the context of the 2019 European elections. The Report highlights the necessity to reshape the procedures and legal instruments used by the European Commission, in particular in merger control, to answer a number of criticisms raised by the French and German governments following the decision of the European Commission to prohibit the Alstom- Siemens merger on February 6, 2019.[1] The Report states that competition policy seems to be applied more strictly in Europe than elsewhere, including China, and that the European Union’s strategic and industrial interests should be given more consideration in competition decisions.