policymakers demonstrate

208 Nikolaos Vettas
analysis can help the formulation of policy will be discussed in subsequent parts
of the chapter. Many interesting applied policy analyses have also appeared; for
example, P. Akman in a July 2015 article considers the acceptance of commitments
offered by Booking.com to the French, Swedish and Italian competition
authorities. 24 She argues that these commitments may represent at best an ineffectual
solution to any problem existing on the relevant market. 25 Booking.com
has agreed not to use the ‘broad’ MFN clauses in its contracts with its hotel
partners for a period of five years, from 1 July 2015. As a result, Booking.com
can no longer require hotels to offer Booking.com the best price across platforms
or the best price that the hotel charges through its offline channels. Yet,
the commitments do not stop Booking.com from imposing MFN clauses to the
extent that the clause seeks parity between the prices on Booking.com and the
prices on the hotel’s online channels such as the hotel’s own website. This commitment
is different from the infringement decision taken by the Bundeskartellamt
in the HRS case and does not prevent Booking.com from seeking parity
between prices on Booking.com and the hotel’s online channels, whereas the
Bundeskartellamt’s infringement decision prohibited all types of MFN clauses.
Resale Price Maintenance
Resale price maintenance (RPM) is a common vertical restraint which has
received much attention in competition policy. The view is often adopted that
minimum RPM or fixed RPM, since it is a restraint, is bad for competition and
violates the law. In particular, in a recent series of cases, some NCAs find that
fixed price or minimum RPM directly violates the law, even when the market
shares of the related firms are low, focusing, in other words, only on contractual
freedom and without a reference to efficiencies and other economic implications.
In other cases, some NCAs have recently taken a different route. In
particular, in October 2014, the Swedish Competition Authority adopted a reasoned
priority decision not to pursue the investigation of a complaint regarding
RPM. 26 In April 2015, the Dutch Competition Authority published a paper setting
out its strategy and enforcement priorities relating to vertical agreements.
It confirms its relatively lenient economic approach towards vertical restraints
and assumes that vertical restraints are generally pro-competitive in the absence
of market power. This claim includes typical hard-core restraints, such as resale
price maintenance. 27
5.2.5 The Digital Single Market Initiative
Partly motivated by some cases like the ones described above, the EC considers
that too many barriers still block the flow of online services and entertainment
across national borders. The Digital Agenda is set to update the EU Single