The impact of the CJEU’s ruling in Booking.com on the analysis of price parity provisions in the hotel booking sector

Retail price parity provisions in the hotel booking sector have been the subject of much debate across the European Union and the United Kingdom, both in the way such provisions have been analysed under competition law and in the substantive outcomes reached. A recent ruling by the Court of Justice of the European Union in relation to Booking.com’s price parity provisions sheds light on the former, holding that such provisions should not be analysed as ancillary restraints falling outside the scope of Article 101(1) TFEU. In light of this development, this article discusses the analytical framework for the assessment of price parity provisions employed by the Court of Justice of the European Union in Booking.com and identifies the divergent approaches taken by courts and regulators in previous cases. While broad principles can be gleaned, the assessment of price parity provisions is highly fact-specific and will depend on a range of factors, including the jurisdictions in which the online intermediary operates, the competitive dynamics in the relevant market and the evidence available.