on introducing rate parity clauses, both broad (in relation to other OTAs) and narrow (in relation to the suppliers of the accommodation service, i.e. hotels)27. Based on the information available, ICA has assumed that Booking is in a dominant position in the market (both European and national) of online hotel intermediation and booking services offered by OTAs, taking into consideration, among other things, that in many European countries, Booking intermediates on average around 68% of hotel bookings made through OTAs. In ICA’s preliminary view, the abusive strategy implemented by Booking would consist, on the one hand, in ex ante binding the most profitable accommodation facilities, through adhesion to the so called “Preferred Program” (and the linked “Preferred Plus Program”, hereinafter, Program), on the basis of which the participating structures are bound to offer prices on the Booking platform that are no higher than those offered on other OTAs, with the promise of greater visibility and in exchange for the payment of higher commissions; on the other hand, in intervening ex post, unilaterally applying on the price charged by the structure on the Booking site, without the consent of its hotel partners, the so called “Sponsored Discount”, where Booking finds that the structure applies lower prices on other online channels (hereinafter, “external prices”), in order to align prices on its platform to the best online offer available. In particular, the Sponsored Discount is a discount that Booking applies to the price of booking the rooms offered on its platform. The discount is financed entirely by Booking, which waives part of the commission received from the partner structure to reduce the price of the room visible to the consumer on the booking.com platform. However, when the price is already “competitive” compared to “external” prices, Booking can still apply a discount to ensure that the price it offers is the best available online, but in this case the structure must have first agreed to the possibility that Booking apply the BSB at their own discretion. In order for Booking to intervene directly on the price through the Discount, the structure must join the “Pay with Booking” program. Overall, this strategy is likely to hinder the unfolding of effective competition in the (at least) national market for the online hotel intermediation and booking services, to the detriment of other OTAs, with adverse effects on hotels and ultimately consumers, in terms of higher prices and less choice for intermediation and booking services. 27 See Pal Szlagyi, On line agency and competition law, European Competition Law Review, 2018, no. 10, p. 437; Enzo Marasà, Italy introduces a legislative ban on price-parity clause in the booling sector, European Competition Law Review, 2018, no.4, p. 196. 161 THE GROWING INFLUENCE OF COMPETITION LAW IN TOURISM
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