Cookie preferences

This website uses cookies to improve your browsing experience and to better tailor the website to your preferences. Below you can indicate your cookie preferences:

Essential cookies are cookies that are necessary for the correct functioning of the website (e.g., to avoid overload on the website, keeping it functional and accessible). These cookies can be placed without your consent.

Functional cookies are cookies that are necessary to improve your browsing experience or to provide a functionality explicitly requested by you (e.g. remembering your settings). These cookies can also be placed without your consent.

Analytical cookies are cookies that collect information about how you use the website to improve search engine hits and the functioning of the website (e.g. we see how visitors move around the website when they are using it to ensure that visitors find what they are looking for easily). These cookies are only placed if you have given your consent.

For more information about cookies and the list of cookies used on this website, see our Cookie Statement.

28 March 2023
Dutch civil court asks preliminary questions about the legality of parity clauses of

The dispute

In civil proceedings between and a group of German hoteliers the Amsterdam district court must rule on the question whether has acted unlawfully by including in its general terms and conditions 'broad' parity clauses until 1 July 2015, and 'narrow' parity clauses from 1 July 2015 to 1 February 2016. Parity clauses prevent hoteliers from offering better terms outside the platform; not on their own hotel websites (narrow) or on other booking platforms (broad). is claiming a declaratory judgment that it has not acted unlawfully by applying such parity clauses. By their counterclaim, the hotels are seeking a declaratory judgment that has infringed European competition law (Article 101(1) TFEU) and thus acted unlawfully.

Ancillary restriction? argues that the broad and narrow parity clauses are an ancillary restraint because the agreements between and the hotels have positive – at least neutral – effects on competition and the parity clauses are inherent to and necessary for Booking's services. According to, its parity clauses prevent hotels from unfairly using's services without paying for them (free riding). Without parity clauses, travellers and accommodations would benefit from's investments in the platform's search and compare functions, while would not be able to recoup its investments.

The hotels dispute that the broad and narrow parity clauses are ancillary restrictions. The narrow parity clause is not indispensable as its abolition in 2016 has had no noticeable adverse effect on's business, the hotels claim. Moreover, according to the hotels, has not demonstrated that there are no less drastic ways to solve the free riding problem and research carried out by the BKA on behalf of the OLG Düsseldorf shows that the risk of free riding is (very) small.

Market definition

If the parity clauses of do not qualify as an ancillary restraint, the next question to be answered is whether the parity clauses constitute an appreciable infringement of Article 101(1) TFEU. For answering that question, it is necessary to define the relevant market. The scope of the applicable relevant market also divides the parties.

In summary, states that the relevant market is the market for the booking and distribution of travel accommodations. In that context, it is essential that is a two-sided platform. For both hotels and travellers, the various distribution channels (online and offline) are substitutable and therefore form a single market, according to

Briefly summarized, the hotels argue that a separate (German) market for online travel agency platform (‘OTAs’) should be assumed, because only the hotel booking portals offer the combination of search, compare and book. According to the hotels, the online distribution of hotel rooms is not substitutable with the offline distribution.

Preliminary questions

In its ruling of 22 February 2023, the Amsterdam district court notes that opinions are divided on the question of whether a parity clause is excluded as an ancillary restraint from the scope of the cartel prohibition of Article 101(1) TFEU.

The court further notes that in the light of developments in European competition law, there is a lack of clarity about the method of market definition in the context of Article 101(1) TFEU. In view of the objective of the TFEU to guarantee uniform application of the TFEU, the court considers it necessary to submit the following preliminary questions to the CJEU.

  1. Can a broad and narrow parity clause in the context of Article 101(1) TFEU be regarded as an ancillary restraint?
  2. In the application of Regulation (EU) 330/2010, how should the relevant market be defined when transactions are brokered by an OTA where accommodations can offer rooms and come into contact with travellers who book a room via the platform?


This is a case to keep an eye on. The outcome is of great importance, not only for the parallel case pending before the Berlin Regional Court, involving over 2,600 accommodation providers, but also more in general for the application of EU competition law to online platforms.

If the CJEU rules that parity clauses can be ancillary restraints, it will not only affect hotel booking sites and hotels, but basically all online platforms and the companies and consumers using them. The same applies to the requested guidance regarding the market definition of online travel agency platforms.

Save, download or share this article

Stay updated

Subscribe for free and get notified on the latest articles, documentation and publications.

More articles about The Netherlands


Comment on this article

Sign in to post comments

Subscribe for free and get notified on the latest articles, documentation and publications.

The DLC’s Legal notice applies. contrast BV will process your data in accordance with the Privacy notice.