7 digital gatekeepers. Booking.com and Airbnb are close to meeting the financial thresholds and criterion of the numbers of unique active users under Article 3 of the Digital Markets Act so these two platforms could be considered digital gatekeepers if their business remains successful in the following years. Online travel agents have been generally opposed to being considered digital gatekeepers. They pointed out that they operate in a highly competitive accommodation sector competing both with online and offline accommodation providers and distributors – including several other platforms, hotel websites, travel aggregators, meta search engines, and offline travel agencies.32 One of the most common criticisms of the Digital Markets Act is that it does not take the user or business’s ability to use multiple platforms for the same purpose into account. A user can look for prices and book a room on various available platforms, or directly on the hotel’s website; and the hotel can offer its rooms via the same channels (multi-homing). If businesses and customers can multi-home, they are more likely to escape conditions imposed by one platform by increasing the use of a competing platform. Booking.com expressed this view figuratively: “If there is no single gate through which business must pass, then there is no reason that would justify the application of a gatekeeper regulation in this sector.”33 Regardless, these criticisms were not heeded by the EU legislators. 4.2 New obligations of digital gatekeepers When an online platform has been identified as a gatekeeper under the Digital Markets Act, it will have to comply with its mandatory rules within six months. Under Article 5 to 7, gatekeepers are subject to certain obligations and prohibitions. Focusing on those that seem most relevant for online booking services, gatekeepers will have the obligation to ensure freedom for users, which includes, for example, freedom of pricing for corporate users and freedom to do business outside the platform. They will be prohibited from combining users’ personal data for targeted advertising without the users’ express consent. On the other hand, they will have to allow data portability and give business users access to their marketing or advertising performance data on the platform.34 Gatekeepers will be prohibited from preventing or restricting corporate users from raising issues with any relevant public authority in connection with any practice of the gatekeeper. They will also be prohibited from ranking their own products or services higher compared to similar services or products of third parties is prohibited and fair and non-discriminatory conditions must apply to such evaluations.35 If a gatekeeper violates the rules laid down in the DMA, it can be fined up to 10% of its total worldwide turnover. For a repeat offence, a fine of up to 20% of its worldwide turnover may be imposed (Article 30). Among the most discussed provisions of the Digital Markets Act in connection with online travel agents is the ban on parity clauses. Article 5(3) provides that the gatekeeper must not prevent business users from offering the same products or services to end users through third-party online intermediation services or through their own direct online sales channel at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper. Unlike its first drafts, the 32 Airbnb, 2020, p. 2. 33 Booking.com Public Affairs, 2020. 34 Hučková and Semanová, 2022, p. 519. 35 Ibid., p. 520.
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